ML20236A599
| ML20236A599 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/15/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8369 ASLBP, OL, NUDOCS 8903200065 | |
| Download: ML20236A599 (51) | |
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CRIGlNAL O
UNITED STATES NUCLEAR REGULATORY COMMISSION I
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1 ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
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PUBLIC SERVICE COMPANY OF
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Docket Nos.
NEW HAMPSHIRE, et; al.,
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50-443-OL
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50-444-OL (SEABROOK STATION, UNITS 1 and 2)
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PREHEARING TELECONFERENCE Pages:
15978 through 16026 Place:
Bethesda, Maryland Date:
March 15, 1989
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HERITAGE REPORTING CORPORATION O
onuwaw-1220 L Street, N.W., Suite 600 8903200065 090315 Washington, D.C. 20005 QDR ADOCK 0500 3
(202) 6M j
15978 UNITED' STATES' NUCLEAR REGULATORY COMMISSION 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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(SEABROOK STATION, UNITS-l'AND 2)
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PREHEARING,TELECONFERENCE Wednesday, March 15, 1989 i
U.S. Nuclear Regulatory Commission 4350. East-West Highway Bethesda, Maryland:
The above-entitled matter came on for hearing, pursuant to notice, at 10:05.a.m.
BEFORE:- JUDGE IVAN W.
SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission i"
Washington, D.C.
20555 JUDGE JAMES H. CARPENTER, Member Atomic Safety and Licensing _ Board U.S. Nuclear Regulatory Commission j
Washington, D.C.
20555 j
JUDGE RICHARD F.
COLE, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
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' APPEARANCES:
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For the Acolicant':'
' THOMAS G. DIGNAN, JR.,
ESQ.
Ropes & Gray j
225 Franklin' Street Boston, MA 02110 For the NRC Staff:
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I SHERWIN E.
TURK, ESQ.
Office of General Counsel U.S. Nuclear Regulatory. Commission I
Washington, D.C.
20555 For the Federal Emeroency Manacement Acency:
H. JOSEPH FLYNN, ESQ.
Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C.
20472 Egr the Commonwealth of Massachusetts:
f JOHN C.
TRAFICONTE, ASST. ATTORNEY GENERAL Commonwealth of Massachusetts
/~N-One Ashburton Place, 19th Floor
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Boston, MA 02108 For the State of New Hampshire:
J GEOFFREY M.
HUNTINGTON, ESQ.
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State of New Hampshire 25 Capitol Street Concord, NH 03301 I
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'l PROCEEDIN.GS 2'
JUDGE' SMITH:
We are all present.
3 The purpose of this prehearing conference is to 4
address any last minute problems that might interfere with 5
the hearing and to have a better understanding of our
~6' procedure.
7' One is, are the parties able to give us any
'8 feeling for the sequence of witnesses?
9 MR. TRAFICONTE:
Yes, Your Honor.
10 Is this on the record so I have to identify-
.11 myself?
12 JUDGE SMITH:
This is a transcript.
Yes, this is 13 transcribed.
1 14 Is the reporter present?
3
( J.
.15 THE REPORTER:
Yes, I am, Your Honor.
16 MR. TRAFICONTE:
This is John Traficonte from the 17
~ Mass. AG's office.
18 I am going to attempt to fax out to all the 19 parties, hopefully early afternoon today, a letter that sets q
20 forth the schedule of witnesses on the first cluster traffic 21-management plan.
22 We have been able to get all of the town witnesses 23 lined up in a sequence which we will set forth in the 24 letter, and this then would be followed by Applicants' 25
' panel.
I believe it's Applicants' Witness Panel No. 10.
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1 And then when that cluster is then complete, as I understand
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2' the'present agreement, we would then turn to Mr. Donovan for 3
cross-examination.
4-JUDGE SMITH:
Wait a minute.
How about the
,5-Attorney General's, did you mention that?
First the town 6-witnesses.
7 MR. TRAFICONTE:
I'm sorry.
I may have misspoke-8 myself.
9 We have been able to get the town. witnesses in 10 addition to the witnesses that the Mass. AG has on the 11 traffic management issues.
12 JUDGE SMITH:
All right.
Now, give me the names 13 of~those items of testimony.
14 151. TRAFICONTE:
I have that in front'of me, and 15' the onlyl reason why I hesitate to give you the names is
[}
16 because in the letter that I intend to fax, I would actually 17 put them down in the chronological order in which we have 18 got their agreement to appears.
19 JUDGE SMITH:
That's fine.
20 MR. TRAFICONTE:
But I don't have that yet, 21 because we are still getting calls back on schedule.
22 JUDGE SMITH:
All right.
23 MR. TRAFICONTE:
Why don't I do this so that 24 everybody knows what pieces of testimony I am talking about.
25 What I am talking about is the testimony that Amesbury l
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filed, the testimony that West Newbury filed, that Newbury
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2 filed, and the two pieces of testimony that Newburyport l
3 filed.
4 And the only outstanding issue is in what exact 5
sequence that testimony would be defended.
And then at the 6
end of that we would put on, the Mass. AG would put on the 7
two witnesses on this issue that we had prepared.
8 JUDGE SMITH:
I think we could be rather versatile 9
on the town witnesses.
They can wait until the last minute, 10 it seems to me, to arrange the sequence in which they appear 11 as far as we are concerned, but we just do not want any I
12 voids.
i 13 MR. TRAFICONTE:
Yes.
No, that I understand, and 14 we think we are going to get an agreement in a matter of
('N 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> on them in terms of a sequence.
I have talked to Mr.
Q 16 Dignan about how long he would imagine this phase of the 17 hearing would last, and we don't have any serious concern 18 about not being able to basically fill this first hearing 19 week.
We think that is probably a foregone conclusion.
20 JUDGE SMITH:
Then, Mr. Traficonte, you recall the 21 Board, in our last prehearing conference, stated that we 22 want to have a representative of the Attorney General 23 present who has full authority to speak for that party, 24 because we want a clarification of to what extent the 25 Commonwealth of Massachusetts is in fact represented in this J
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. proceedings.
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2 MR. TRAFICONTE:
I have had a conversation, I t
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wasn't on the line because my speaker phone wasn't 4
functioning very well, and obviously I did not hear that 5
firsthand.
We wanted to get a transcript so I could look at 6
that to put me up to speed, I hope.
7
-JUDGE SMITH:
I beg your pardon?
8 MR. TRAFICONTE:
One of the issues I wanted to 9
raise in this status conference is we are a little bit 1
10 puzzled as to the exact nature of the kind, or who it is 11 exactly that are the kind of person that you would want to 12 have there.
13 JUDGE SMITH:
Any person who can speak for the i
14 Attorney ~ General.
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15 MR. TRAFICONTE:
Oh, the Attorney General himself 16 is intending to give an opening statement.
17 MR. TURK:
By whose lead?
18 MR. TRAFICONTE:
Pardon me?
19 MR. TURK:
We hadn't discussed giving opening 20 statements until now.
j 21 MR. TRAFICONTE:
I was going to, on the agenda, on 22 my agenda for today was to request or at least to inquire 23 whether the Board would entertain, as it did in New 24 Hampshire, opening statements.
25 JUDGE SMITH:
That's provided for in the rules.
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l' If he wants to make an opening statemtrit, we certainly will.
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2 entertain it, j
3 MR. TRAFICONTE:
All right.
Well, that was our j
4 assumption based on the experience in New Hampshire, and he' 5
- would very much want to give an opening statement.
6 My only concern about the discussion of yesterday l
7 had to do with whether the Board is -- is that going to 8
satisfy the Board.
I understood'that the issue seemed to l
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have come up around a particular intersection.
j 10 JUDGE SMITH:
Well, yes.
It is not the l
11 intersection itself.
It is the realization which that 12 discussion triggered that the Attorney General feels that he 13 is without authority to commit in any respect the entire 14 Commonwealth.
(3 15 MR. TRAFICONTE:
I s er..
i x,/ -
i 16 JUDGE SMITH:
And I wan a clarification of that.
17 In fact, we=want to understand it.
'l 18 MR. TRAFICONTE:
Then it would seem.to me, based
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l 19 on what you have just said, Your Honor, that having the 20 Attorney General there, we should be able to get -- it seems i
21 to me we should be able to get the answer to that question.
22 I mean you would not want anybody else.
He would be able to 23 respond to that inquiry.
24 JUDGE SMITH:
Well, certainly we will accept 25 anybody who comes to the hearing with full authority to Heritage Reporting Corporation g
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-speak'for the Attorney General's office, and certainly the 2
. Attorney. General has that authority.. That is: fine.- We will' lk
- 3-be' pleased-to/see him-again.
4-MR. TRAFICONTE:
Okay'.
o-5'-
JUDGE SMITH:
But we do want a clear understan'dingc
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.of:to'what extent.the. Attorney General represents the:
7' departments of~the' Commonwealth,' and-we may have'some
'8-questions-of him'along that line.
4 9.
MR'.:TRAFICONTE:
Well,fhere'is what I would I
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'10 propose.
I am in the processt of, or at least the office:is i
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.in the process of preparing an' opening. statement.- And 12 knowing what the concern'of the Board is,.I will ensure that
-13 the Attorney General will, in his opening statement, in his
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' prepared statement, address the issue.
And obviously;he is
-15 there.and available for any further inquiry.
Obviously not
" }-1 16 as'aivitness. subject to cross-examination, in this regard.
C7 J U D G E. S M I T H ::
Well, all right.
18 MR. TRAFICONTE:
Is that satisfactory, at least as
- 19' a response.to the concern expressed yesterday?
If at a 20.
future point more detail is necessary, for example, with 21'
. regard to specific concerns about transportation or traffic 22 management, we obviously would make every effort'to find and 23 secure the presence of the relevant personnel.
24 But one of my concern, as I understood it from Mr.
25 Fierce, was that we were scrambling around to find a i
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representative for.the Departmentoof Transportation who l
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2 could free up'his calendar for' Tuesday, and that -really was t
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' looking to-present us with a problem.-
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- JUDGE' SMITH:'
No,.no, no, we didn't have that in mind.
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' MR..TRAFICONTE:
All right.
.7 JUDGE SMITH:- The' issue,.lat's go back to the-
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8 issue of the intersection of 110 and'I-95.
I haven't read 9
the transcript on this particular point, but it seemed to 10 developed that the Attorney 1 General only represents himself, 11 and would not-have any authority to commit to any traffic 12 management changes for the Commonwealth.. And'the one.in 13 particular was the' possibility of an emergency roadway 14 across the-grassy median as an example.
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15 MR. TRAFICONTE:
Yes.
16 JUDGE SMITH:
If that is the-case, it the Attorney j
17 General cannot enter into any. type of traffic management j
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18 considerations, we want to know that.
19 MR. TRAFICONTE:
I see.
20 JUDGE SMITH:
And we also might want to revisit 21 some of the contentions which have previously been accepted i
22 which purport to state what the response of the Commonwealth 23 will be.in the event of an emergency; what is the standing 24 of the Attorney General to litigate such contentions.
25 That's the type of concern that we have, and we will want Heritage Reporting Corporation (202) 628-4888 O.
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MR. TRAFICONTE:
I'm making notes.
I want to make l
.3 sure I get this right.
1' l-1 4.
JUDGE SMITH:-.Now, I don't.want.to overstate the 5'
- example where -- and-that's the median st' rip, because the 6
Board did believe that the parties were very responsible in L
7 arriving st what was obviously a sensitive-and difficult 1
l 8
stipult.tinn.
And we don't want you to burned every time you 9
try to stipulate something and it opens up a problem.
10 We want to encourage stipulations, and we don't 11 want to make the risks of entering into stipulation 12 negotiations so great that you won't do it.
But this did 13 give rise'to my first time understanding that the Attorney 14 General doesn't represent the whole' Commonwealth, or at 1
15 least he does not have the authority to represent the whole
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16 Commonwealth, as I understand it, a lawyer representing a 17 client usually has.
And that is the' clarification we want.
18 MR. TURK:. Your Honor, I wonder if Mr. Traficonte 19 can' confirm or disagree with your conclusion.
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20 THE REPORTER:
Who is speaking, please?
l 21 MR. TURK:
[
i 22 THE REPORTER:
Okay, thank you.
23 MR. TURK:
So we have some sense of where it's 24 going even before Tuesday.
25 MR. TRAFICONTE:
Well, from what I can gather from l
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Your Honor's comments,. frankly, it sounds to me like there
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-2 is a fairly complex issue of law here.
'I think it's a fair 3
statement that -- I think it's an accurate statement that 4
the Attorney General of the Commonwealth does not represent i
5 in this proceeding, for example, the Department of' 6
Transportation or the Department of Public Safety.
Let me 7
start with that premise.
8 Then the second statement I would make is that it 9
is a fact that in discovery, for example, we made efforts at 10 contacting these various agencies and gathering documents.
l 11 But as I think the Board is aware, we made those -- those 12 departments are not in any sense under the Attorney General.
13 JUDGE SMITH:
Is the Governor represented in these i
14 proceedings?
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15 MR. TRAFICONTE:
Pardon me?
(d 16 JUDGE SMITH:
Is the Governor of Massachusetts 17 represented in this proceeding?
Is he a party?
18 MR. TRAFICONTE:
Your Honor, I am not -- I am 19 hesitating.
20 JUDGE SMITH:
Well, that's what we want to know.
21 MR. TRAFICONTE:
I am thinking about the -
you 22 are asking a very direct technical question about who has 23 been admitted as a party.
And I don't -- without going back i
24 and looking, I am not sure that the Governor of 25 Massachusetts has himself, as he occupies that Heritage Reporting Corporation (202) 626-4888 O
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1 constitutional office, made an appearance or has become a
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2 party to this proceeding.
3 JUDGE SMITH:
All right.
4 MR. TRAFICONTE:
That, it seems to me, to be an.
5 empirical question, and that's why I would want to hesitate 6
without going back and looking at the record.
7 Certainly I have not seen, or, I'm sure, has 8
anybody else that's on the-line today, I don't recall seeing 9
a representative of the Governor, anyone from his legal I
10 staff, for example, appearing at these hearings.
11 JUDGE SMITH:
Are you the constitutional lawyer i
12 for the Governor?
13 MR. TRAFICONTE:
No.
l 14 JUDGE SMITH:
You represent the Governor in court?
15 MR. TRAFICONTE:
No.
16 JUDGE SMITH:
You represent the state departments 17 in court?
18 MR. TRAFICONTE:
A much more complicated question, 19 that is a much more complicated question that involves the 20 relationship between a department of state here that would q
21 have its own legal counsel and would be empowered to, for l
22 example, appear -- these independent legal counsels, for 1
0 23 example, legal counsel's office to the Department of
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24 Transportation, for example, is empowered, or that that l
25 legal office is empowered to represent that department.
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'l But in addition,,under certain circumstances which
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!2' lt am in'no way.able to, at least without doing'a lot of.
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. checking, I am no way able'to represent accurately to you
~4 today.
There are also occasions where the. government 5
bureau of the Attorney General's office would go irr and.
6' defend' lawsuits brought against various state departments.
-7=
JUDGE SMITH:
Right.
8 MR. TRAFICONTE:
Frankly, the answer'is fairly 9
mixed.
4 10 JUDGE SMITH:
Right.
And then also I would 11.
- imagine the Attorney General would represent the 12-Commonwealth in land condemnation proceedings.
13 MR. TRAFICONTE:
Correct.
We have a division,of 14 the Attorney General's office that could represent, and does
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' 15 represent the Commonwealth in eminent domain proceedings;
- 16 that's correct.
. 17 JUDGE SMITH:
And you represent the Commonwealth 18 in, for. example, license revocations.
19 MR. TRAFICONTE:
Well, again,.it'would depend on 20 what the issuing authority is for the license.
2:1 JUDGE SMITH:
All right.
We want a thorough 22 understanding of what the Commonwealth of Massachusetts, as-
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23 to the extent it is represented by the Attorney General, 24 what the authority +he Attorney General has to represent the 25 Commonwealth:
Where is it limited and where is it not Heritage Reporting Corporation (202) 628-4888
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stipulations,.make lawyer's commitments, speak factually for
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the Commonwealth, where there may be privity between you and
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'the' Governor.
We just. simply have to have a better 5
understanding of who are the players in this litigation.
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.And the issue of the intersection just happened to
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be an example of what we thought would be a good example of 8
what we regard as a rather nonsensical state of affairs when 9
there.is presumably an easy, low' cost fix with no apparent 10
-adverse side effects.
And yet we just drift along without 11 looking at that because the Attorney General doesn't fix 12 roads.
You know, we wan't to understand.
If that's the j
13 case, we want to understand what kind of unusual proceeding 14 we are conducting here.
/'T 15 MR. TRAFICONTE:
Your Honor, if I just -- I do
\\J 16 understand, I believe I understand the Board's concern.
If 17 I just might make a statement that I think could be a I
18 clarifying one.
I hope it would be, and please don't take 19 this in any kind of negative way.
20 There is in this proceeding before the on-site 21 board, as Mr. Dignan is aware, an ongoing issue of the j
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22 adequacy of the siren system for the Massachusetts portion j
23 of the EPZ.
There was at a certain point in time a fixed 24 siren system in place and functioning.
As a result of 25 actions of, and I want to be very loose here, but as a l
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resultrof actions of government officials, and that's to I
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.2 indicate that in many cases or in all' cases, I believe, the 3
government officials involved are town officials.
j 4
The fixed siren system was dismantled and as a-5 consequence contentions in this regard were filed, a record 6
was reopened, and in fact there is ongoing litigation 1
1 7
presently before the other board on the. replacement system 8
that the Applicants have proposed.
9 Now, I use this as an example, because if I l
i 10 understand the general gist of the Board's comments to Mr.
11 Fierce and the inquiry that you put to me, if I aderstand 12 the general gist, the Board would express, let us say, no 13 small amount of frustration with the Commonwealth and with 14 the Attorney General in his efforts to litigate the lack of
'N 15 adequacy of the Applicants' substitute siren system.
l (d
16 If my example is a good one, I think my example 17 illustrates in perhaps the extreme the odd -- let me put it l
18 this way -- the odd nature of the proceeding.
l 19 Now, the only point I want to make with that 20 example is that Mr. Dignan can speak to this much better l
21 than I, but at a relevant time period in 1988, when the 22 issue was before the Appeal Board of a reopening of the l
23 record as a consequence of the dismantling by state l
24 officials of the fixed siren system, when this issue of j
25 reopening was before the Appeal Board, Mr. Dignan made a Heritage Reporting Corporation (202) 628-4888
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'l iconcerted effort to have the Appeal. Board essentially _ view
-2 the overall.. situation as an inequitable one, and I believe.
3 in common ~laweit would be called " unclear. hands".-
~4 And as a'_ result, Mr. Dignan'made'the argument
---I I
5' won't it was not a persuasive'one,,but he certainly made it
{g a-6 with a~1otLof passion that' essentially the Appeal. Board 7
should not permit the Commonwealth, and here again I want to:
8-repeat,.the Commonwealth,. the Attorney General to litigate 9
the adequacy or the inadequacy of the Applicants' mobil 10 siren system because indeed it was the Commonwealth that had 11 dismantled the otherwise adequate fixed siren system.
12 Now, if I understand -- and I obviously was 13 involved, at least in part -- if I understand how that issue 14 was posed to the Appeal Board back in 1988, I think there is 15; a tremendous amount of resonance with regard to the issues 1{}-
16 as they-were then presented to the Appeal Board and the
.17.
-underlying concern presently being voiced by this Board.
18
. JUDGE SMITH:
That's very good.
In fact, that 19 focuses on it quite well, because I myself thought that Mr.
20 Dignan's brief on that issue, the clean hands issue, was j
21 well reasoned and an excellent brief.
l 22 MR. TRAFICONTE:
Right.
I hadn't been aware that" l
23 you were that familiar'-- fine, fine.
Then my intuition is j
24 correct that we may be walking down the same road again.
j 25 My only reason for bringing it up is that after my j
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'l discussion.with Mr. Fierce' yesterday,land I frankly was 1[ f-2-
thinking this.through, I went.back;and looked.at the' Appeal a
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Board's decision in this. regard.
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-4 JUDGE SMITH:
And as I recall.the decision --
I
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MR. TRAFICONTE:
'I'm sure that was not found_by 6
you as_quite as= persuasive..
)
7 JUDGE SMITH:
As I recall the' decision, and I 8
don't want to characterize _it again~because I was reading it' l
9 in a rather casual way, the decision did not turn on-the 10 clean hands issue itself.
It turned on-the factual bases.-
11 I don't recall, but we will revisit that.
]
12 MR. TRAFICONTE:
That would be my only proposal' 13
- and, frankly,-I think that'what we are discussing is a very
-y
' 14 important procedural point here; perhaps.a fundamental one,.
~ ~T 15 and of perhaps great consequence to the outcome of the
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' 16 proceeding.
But all I would suggest is that everybody, as I 17 did last night, everybody turn and reread the Appeal Board's 18 discussion of what I think is the same issue'in a situation-19 that, if anything, is even more completely presented,'if 20 that's the right parase; more poignantly presented, at least i
21 from the Applicants' perspective, than the issue, for 22
' example, of a certain intersection or any other alleged 23 defect in the emergency plan.
24 The siren system was dismantled by the affirmative 25 actions of town licensing officials.
And I guess my point Heritage Reporting Corporation (202) 628-4888 m
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is if Mr. Dignan was going-to' prevail,.or if this approach
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-that.I believe is underlying the Board's. concern was going 3.
to prt il in this case, I could not imagine.a better i
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instance for it prevailing than the siren situation, and the E
5 Appeal Board simply did not accept it.
6 JUDGE SMITH:
They didn't reject it either.
They 7
challenged the factual predicate.
Let's' read that.
Can you 8
give me a citation for that?
9 MR. TRAFICONTE:
Do you have the citation for l
10 that?
I have.it in slip opinion.
If you will all hold, I l
11 will just' dig it out of my file again.
-12
-JUDGE SMITH:
I suspect that you recall it, Mr.
13 Dignan.
1 14
.MR.
DIGNAN:
My problem is, Your Honor, that I i
15 don't have the citation.
I have asked Ms. Woodlow to go out l
16 and see if she can find the decision for me.
If I get it 17 before we finish, I will be glad to give it to you.
.18 JUDGE SMITH:
Mr. Traficonte, you are exactly 19 right.
That is one, but only one aspect of the Board's 20 concern.
We have other aspects to it.
21 For example, taking the intersection again.
We 22 want some feeling as to how serious a safety problem is 23 presented; what measure of a safety problem is there when we i
24' know that it can be fixed by a low-cost, unobtrusive fix.
25 That is one measure we would think would be some aspect of i
Heritage Reporting Corporation (202) 628-4888 4
15996 i
1 how serious a safety problem this presented.
(J 21 MR. FLYNN:
Your Honor, this is Joseph Flynn.-
I'm 3-not sure that John is on the line.
I think he has left.
4 MR. TRAFICONTE:
I am.
I'm sorry.
I said'you 5
would have to hold, and I'm sorry.
l 6
JUDGE SMITH:
I will come back to my statement 7-after you --
8 MR. TRAFICONTE:
I have located the opinion, and 9
it was dated February 3, 1988, and it is ALAB 883.
10 JUDGE SMITH:
Okay, thLnk you.
11 MR. TRAFICONTE:
And I think that, you know, as I 12 indicated in thinking this through last night, I do believe l
13 that the issues were very clearly drawn in that discussion.
14 JUDGE SMITH:
All right.
15 MR. TRAFICONTE:
You had made a further comment, q
16 JUDGE SMITH:
Yes.
I said that I appreciate your 17' bringing that to our attention because you have indeed 18 identified one aspect, but only one aspect of what our 19 interest is in this issue.
20 Another aspect, for example, would be that when we 21 try to assess how serious a safety problem is presented by 22 this intersection, may we look at how easily it can be 23 corrected?
24 The suggestion is there would bc a six-mile J ong 25 queue, and that would present a serious safety problem l
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because of its effect upon the evacuation.
.( )
2' Well,fone way we may judge the Commonwealth's firm
^
3 belief in that_ safety problem is whether or.not'they might' 4
accept'an easy.fix to it.
Is it a. safety _ problem that: is
~
5 worth lessLthan $10,000?
Not'that we are suggesting we have
' jurisdiction to impose fixes or order fixes, but we do have j
6 1
7 jurisdiction.and a duty to inquire intoihow important'a ll 8
party believes its issues are, and that is another aspect of.
9 why we_want to know.,
j 10 All right, well, that is quite helpful.
{
11 MR. FLYNN:
Your Honor, this is Joseph Flynn.
May u
l l.
12 I' bring up.a'small point?
I i
l-13 JUDGE SMITH:
Let me ask you, Mr. Flynn.
Do you j
1 14 think that FEMA has'the jurisdiction to fix the interstate j
()
15 highways for emergency evaluation purposes?
16 MR. FLYNN:
I can't imagine that we do.
l 17 JUDGE FMITH:
I believe it was the President's l
18 Executive Order.
19 MR. FLYNN:
Well, no, I appreciate that but --
l 20-JUDGE SMITH:
You don't'think you do?
21 MR. FLYNN:
No, I don't believe that the Executive L
22-Order gives us authority to change roads, to pave roads and H23 things like that, no.
24 JUDGE SMITH:
At least you don't want to do it.
1 l
25 (Laughter.)
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MR. FLYNN:
No, I'm afraid of being. arrested.
' O) 2 (Laughter.)
-(
3 MR. DIGNAN:
Oh, me.
4 JUDGE SMITH:.All right.
5 MR. FLYNN:
The point I wanted to raise, and this i
6 really is - -
1 7
JUDGE SMITH:
Does anybody else want to comment on 8
this particular point before we move on?
.j i
9 Are you talking on this point, Mr. Flynn?
j 10 MR. FLYNN:
.Well, I wanted to go back to the first j
11 point that we were talking about, and that is the order of
' 12 the' witnesses.
13 MR. TURK:
Your Honor, before we do that, can I 14 address the point.of the intersection and the representation
. (~T
'15 very briefly?
U 16 JUDGE SMTTH:
Right.
Yes, let's make this a 17 discrete part of the discussion, and then move on to Mr.
18 Flynn's concern.
19 MR. FLYNN:
Okay.
20 MR. TURK:
I would just note -- this is Sherwin 21 Turk.
I would just note that there i3 still an outstanding 22 question which the Board raised when we started this 23 discussion about who is the party in this proceeding, and to I
l 24 what extent does Mr. Traficonte and Mr. Shannon represent l
I 25 the Commonwealth of Massachusetts, i
l L
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1'
'AndlI'would ask Mr..Traficonte to look at.Ithat-(
L2 very. carefully.
And I don't understand from anything'he has 3;
said so far today that.he is. denying that he represents the; 4
Commonwealth.
All he has been responding to is'whether or 1
'5' not_the. Commonwealth has the right to oppose licensing the q
I 6-plant'without participating in emergency planning; the 7
unclean hands issue.
l 8-But I haven't heard him say.anything about whether.
9 he has; authority to reach. agreements or to bind the 10 Commonwealth to statements in this proceeding.
1 11 JUDGE SMITH:
That's our concern.
1 12
.MR.
TRAFICONTE:
Well, I will say, subject to i
13 check, because I do believe there is a fairly complex issue 14 here under our own constitution, but it is quite clear to me
/~'
.15 V) andLit's certainly the understanding of our office that we, 16 for example, could not enter into an agreement'that would' ^
17
. bind -- in this litigation -- that would bind the Department l
18 of, Transportation to do anything to a particular.
1 1
19 intersection.
20 MR. TURK: 'The question, though, the Department of 21 Transportation --
22 MR. TRAFICONTE:
Was that a' responsive answer, 23 Sherwin?
24 We don't have the authority to speak on behalf of, 25 for example, the Department of Transportation.
{
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1L MR. TURKr. As I' understand most/ state government-
!2' setups,fa department of transportation ~is usually part of-
=3 the. Executive Branch of government.
~4" MR. TRAFICONTE:. Right.-
i
- 5
- MR. TURK:
Which means they fall.under the purview.
~
'6
'of the Governor.
7 MR. TRAFICONTE:- Right.
8-MR. TtHU(:
If the Governor directs his Department 9
of Transportation.to do something,-they do it assuming it l
10 was in.their statutory authority.
l
- 11.,
And if then you do represent the Governor in this.
1 12 proceeding --
13 MR. TRAFICONTE:
Well, I have.already indicated i
14 that, you know, it's my understanding, or maybe I didn't
/- -
15
' indicate..The question was put, is the Governor a party to e
\\
E16 this proceeding.
.j 17 MR. TURK:
That's not the right question.
l 1
18 MR. TRAFICONTE:
Well, I thought that was the 19 question that was put to me.
20 But what would be the right question?
.21 MR. TURK:
You phrased the question, but the 22 question is, is the Governor represented by you in this t
23 proceeding.
24 MR. FLYNN:
Can I help out here?
This is Joseph 25 Flynn.
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~ To me the issue is-clear, if not_ simple.
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'2 MR. TURK:
,If you would excuse me, I would like to 1
f
}
3 hear John's answer because that's pivotal.
j i
4 MR. FLYNN:
Excuse me, Mr. Turk.
I think-I can a
5 help cut'through this.
'{
j 6
MR. TURK:
This is John's.
I don't see how.
i i
7 MR. FLYNN:
-If you will just allow me to speak for 8
a moment.
9 What Mr. Traficonte is saying is that under the q
4 1
10 constitution of Massachusetts, the Attorney General, who is 11 directly elected, represents the people of the Commonwealth j
12 of Massachusetts, not the Governor.
13 Now, you can argue about what that means, and 14' that's what the argument is about.
But tnat's the essential 7c].
' distinction that.is being made here.
15'
\\s
'16 John, am I correct in that?
17 bm. TRAFICONTE:
Maybe there is a fact that I 18 thought we certainly in this office had tried to make clear
.l 19 at different points, but perhaps the significance of.the i
20 fact has not been fully grasped'because our system is.
21 slightly different than other states.
22 In New Hampshire, for example, the Attorney 23 General is an appointee of the Governor.
In Massachusetts, 24 the Attorney General is an elected official of the people, 25 occupying an independent constitutional office.
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1 To that extent, you know, in a simple-minded way j
-()
2 the Attorney General,-and I frankly have to reinforce what 1
.3 Mr. Flynn said, I think.
The Attorney General represents 4
the. people of Massachusetts, and not, unless there is some i
5 special dispensation, he doesn't represent the Executive l
)
6 Department as a part of the larger government of j
I i
8 JUDGE SMITH:
Mr. Traficonte.
9 MR. TRAFICONTE:
Perhaps that distinction, which 10 is' built into our constitution, needs to be made.
f 11 JUDGE SMITH:
Mr. Traficonte, I am familiar with 12 the concept that you are describing, that the Attorney i
13 General is a constitutional officer and elected to represent 14 the people.
And without full leave of the Governor, he may,
()
15 for example, enforce the laws as the chief law enforcement 16 officer.
He may bring about, without further leave of the 17 governor he may bring about injunction actions.
He may do-18 whatever is necessary to enforce the laws.
19 Now we are talking about what happens when the 20 Executive Department enters into agreements and those I
21 agreements have to be defended, or what happens if the
)
22 Executive Department is sued for damages, for injunction, 23 for mandamus or whatever.
Does the Attorney General get 24 involved in that?
25 MR. TRAFICONTE:
Yes.
And I understood that was Heritage Reporting Corporation i
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(ht 16003
- 1:
.your earlier question to me.
And my response was that there-
.i
( }"
L2 are circumstances in which our government bureau'will'end.up L
3.
representing departments of the Commonwealth.
L i
l-4 JUDGE SMITH:
Both defending and acting as 5
plaintiff's counsel for them.
'l l_
6 MR. TRAFICONTE:
I didn't hear the first part of
'i 7
your. question.
L
'8 JUDGE SMITH:
Both defending the departments and j
9 acting as plaintiff's counsel.
j 10
-MR.
TRAFICONTE:
In fact, I think, although after I
11 I am going ~to get off here I'm going to check with our i
12 government bureau, but I don't believe that'the government 1
13 bureau can function as plaintiff counsel.to these agencies.
14 JUDGE SMITH:
Right.
i' 15 MR. TRAFICONTE:
I think to that extent.their own-16 in-house counsel l functions as their plaintiff counsel.
i l
17 Can I offer another -- I think we can draw the
.18 issue very clearly if I am permitted to just set forth a
'19 hypothetical for a moment.
R 20 Part of our problem here, and I sense the
-21 frustration, is that obviously the Commonwealth is a 1
22 nonparticipating government vis-a-vis an emergency plan for l
l 23 Seabrook.
Appreciate the following facts.
l l
24 It would be obviously possible for the Governor or 25 perhaps, for example, another governor or a different Heritage Reporting Corporation (202) 628-4888 n
i 16004 j
1 governor, to; decide at a certain point prior to licensing of
()
2l Seabrook that the policy of not participating in planning is 3
not a good one, and that the Governor has-decided at this 4
future point to prepare an emergency plan.
[
5 If we just start with that hypothesis, one thing 6
that is dramatically clear under our governmental structure 7
is that this office, the Attorney General's office could 8
litigate, and indeed if Mr. Shannon was the Attorney' l
9 General,'I am confident in saying he would litigate and 10 challenge the adequacy of the emergency plan that the state 11 itself was generating and submitting and defending.
So I 12 mean I throw that out as a hypothetical.
13
'I will represent that that is the case.
And if it 14 is, I am not sure how the fact that it so happens that the
(}
15 Executive Department has decided not to participate in 16 planning instead of participating alters the position of the 17 Attorney General to the extent that he is challenging the j
(
18 adequacy of whatever plan is on the table.
]
f 19 JUDGE SMITH:
Well, if the Board -- I think we are 20 about done with this discussion.
21 Mr. Dignan, do you have anything to say?
22 MR. DIGNAN:
No, Your Honor, except I was going to 23 add, I had-said I would check the cite for you.
The 24 decision that you were discussing with Mr. Traficonte, 25 ALAB 883 appears at 27 NRC 43.
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JUDGE' SMITH:
Three?
,j t
=P' 2
MR.-DIGNAN:
Forty-three.
27 NRC 43.
-Q 3!
JUDGE SMITH:
All right.-
11 MR. TURK:
Your Honor, I have one thing to add.
'5 MR. DIGNAN:
In addition, Your Honor, and this H
o obviously isn't'the time to argue that-decision.
I do think j
i 13
~
7 a' careful reading is in order because I tend-to agree with 8
Your Honor's analysis as to what was and was not decided in 9
'that decision.
Indeed, it seems to me the Appeal Board did i
10 not address the question of whether the estoppel _ theory was 11 one that could be adopted.
It just said that on the facts 12 that we had given them at that time, we didn't have the 13 facts to make the estoppel argument, j
-l 14 JUDGE SMITH:
Well, we will read it, and we 15 appreciate it.
'I 8
(_
16 Mr. Turk, were you going to make another 17' statement?
18 MR. TURK:
Yes, I was, Your Honor.
19 I'want to call to your attention and to'Mr.
20 Traficonte's attention that this type of question has come
- 21 up before in the proceeding.
In fact, back in 1986, the 22 Appeal Board' issued specific questions to Massachusetts 23 Attorney General inquiring as to its status in the 24 proceeding.
I don't have a copy of that order here.
It was 25 an Appeal Board order dated May -- excuse me -- May 22, j
Heritage Reporting Corporation (202) 628-4888 i
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i
.1 1986.
I don't have that=with'me now.
().
2 But I do have the Attorney General's response to 3
that order, and this is a pleading they. filed on May 30,
]
I 4
1986.
And this pleading is signed by Carol Sneider as:
5 Assistant Attorney General.
And one of the statements.in 6
this pleading is as follows:
7
" Attorney General Bellotti," the predecessor to 8
Mr. Shannon, "is not a party to this operating license i
9 proceeding.
However, by memorandum and order of the
]
1 10 Licensing Board dated September 13, 1982, the Commonwealth 11
.of Massachusetts was granted status to participate in this 12 proceeding as an interested state pursuant to 10 CFR 13
- 2. 715 (c). "
14 There is then a citation to LBP-82-76, 16 NRC 15 1029, 1077-79 (1982).
{}
16 The pleading goes on to state that the 17 Commonwealth has never sought to intervene -- let me read it l
E18 directly so I don't paraphrase incorrectly.
"The appeal,"
19 and by the way, this was an appeal from the rejection of 20.
Mass. AG's contention, "The appeal is not that of the 21-Commonwealth of Massachusetts except insofar as the Attorney 22 General has sought intervention in this proceeding in order I
23 to represent the interest of the Commonwealth and its 24 citizens."
25 It goes on to say, "The Commonwealth of i
(
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16007 1-Massachusetts has never sought independently of the Attorney
.( ).
'2 General to intervene or otherwise participate in this-
'3 proceeding."
l 4:
,And then during. oral' argument before the Appeal i
5 Board on that same issue, June 18, 1986, Ms. Sneider again 6
was presenting argument for Massachusetts Attorney General's 7
office, and she states at page-5 of the transcript,-"To 8
'begin with, I'would emphasize that Attorney General Bellotti 9.
does represent the Commonwealth of Massachusetts in this 10 proceeding.
Thus, for purposes of this appeal the Attorney i
11 General and the Commonwealth of Massachusetts should be' 12 deemed a single entity."
13 Whatever may be Mr. Shannon's intentions in the l
-14 proceeding, I hope we are not going to get whipsawed and f'/
T 15 hear him argue now that he only represents his own office-1 s_
16 with no authority to bind the Commonwealth of Massachusetts 17 in the proceeding, because it seems to me he is speaking on I
18 behalf of the Commonwealth in prior instances, and now he-l 19 wishes to withdraw from that.
l 20 MR. TRAFICONTE:
Well, you know, this is an 21 example of hearing the language, the same language, but 22 understanding it to mean different things.
23 I have followed what you have said, and my 24 understanding of what you have said is that our 25 representation was that we were representing the people of l
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the Commonwealth, the citizens of the Commonwealth..
j 1
2
.You apparently have taken what'you have read to 3'
mean we represent the government of-the Commonwealth,.or at 4
least all of its governmental agencies.
And'I'think that, i
j 5
you know, a fair reading of what you have just read at-
)
i 6
least, and I have got notes on what you have said.
I'm
)
7 going to go back and look at those pleadings, but to'my ear, 8
at least, what I heard was that we were identifying our role 9
here as the AG representing the citizens of the 10 Commonwealth.
11 MR. TURK:
Well, if you look at the Licensing 12' Board. order, which is cited by Ms. Sneider in her paper 13 before the Appeal Board, when Mass. AG was admitted --
14 actually I should say when the Commonwealth was admitted, 1
15 the Licensing Board pointed out that it was admitting the
(}
16 State, capital letter.
I think you had better look at the 1
17 language at page 1079 of that Licensing Board decision and f
i 18 see what basis you have for participating in the proceeding l
19 if you are not representing State government.
20 JUDGE SMITH:
Well, whatever it is we will want to i
21 know, because if you represent the Commonwealth as such, 22 that, of course, is significant.
If you represent only the 23 Attorney General and the people but specifically not the i
24 departments and not the Governor, then we will perhaps l
25 revisit some of the contentions to see if you properly can Heritage Reporting Corporation (202) 628-4888 O-
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litigate them.
( )s 2
MR. TRAFICONTE:
I understand, I understand the --
3 I am going to go back and look at the 1982 order that Mr.
4 Turk has read from.
5 JUDGE SMITH:
All right.
Anything further on that 6
point?
l 7
Mr. Flynn, you wanted to make a statement about 8
the sequence of witnesses?
9 MR. FLYNN:
I just wanted to bring up a very i
10 simple point.
When Mr. Traficonte was listing the witnesses 4
11 who would appear before Mr. Donovan, he did not mention Mr.
12 Urbanik, and I wanted to --
13 JUDGE SMITH:
All right.
14 IDt. FLYNN:
-- mention that is the intention of
- (
15 the Board and the parties that Mr. Urbanik will follow 16 Applicants' Panel No. 10.
17 MR. DIGNAN:
Wait a minute.
18 First of all, on the dissertation on witnesses, j
4 19 there was an inadvertent error.
The Applicant rebuttal 20 testimony that will be in this package is not No. 10.
It is
]
21 No.
9.
It's entitled Applicants' Rebuttal No.
9, Traffic 22 Management and Evacuation of Special Population.
23 The second thing is this.
It seems to me that 24 what we did here was to fill up this week in order to 1
25 accommodate FEMA's desire that Mr. Donovan not appear until Heritage Reporting Corporation r^s (202) 628-4888
\\)
l 16010 1
the 27th.
I would suggest that what we really ought to do Lf~')
~2 is start that first week, hopefully finish the cluster, v
3 although maybe we don't.
But whether we do or not, let's 4
put Mr. Donovan on the stand on the 27th.
5 JUDGE SMITH:
Why?
6 MR. FLYNN:
Wanted to do that, but that wasn't my
'7 understanding.
8 JUDGE SMITH:
Why would we not finish the cluster?
9 MR..DIGNAN:
Because the hope was to have Donovan 10 in'and out on everything before we did anything, and to 11 accommodate his desires.
And it seems to me, as I 12 understood it, Donovan wanted to be there the 27th, was to 13' put him on the 27th and get him over with.
14 JUDGE SMITH:
Well, Mr. Flynn is not asking for 15 that.
As a matter of fact, several times on Monday we
-~
suggested that he did not have to be there until the first 16 17 cluster is completed and the 27th came up simply because 18
.he's available then.
19 MR. DIGNAN:
Okay.
20 JUDGE SMITH:
As I understand it.
21 Am I correct, Mr. Flynn?
22 MR. FLYNN:
Yes, Your Honor.
23 MR. DIGNAN:
Okay, so we definitely are going to 24 finish through Urbanik before we see Donovan.
25 I'm ind1fferent on this matter, if that's the i
I Heritage Reporting Corporation (202) 628-4888 u
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Board's desire, but ILjust want to be clear on what it is so fb 2
that I know how to schedule my own situation.
%Y l
J 3
JUDGE SMITH:
The Board has no desires on this.
1 4-MR. DIGNAN:
My problem is this.
We may"have a 5
witness conflict that week if we.get to our people that 6
first week.
And if we'do, that could create a problem.
7 JUDGE SMITH:
The second week.
8 MR. DIGNAN:
No, the first week.
See, the problem 9
we have got is that Mileti is a piece of that Applicants' 10 No.
9.-
Now, his piece is essentially severable, I think, 11 before he could be cross-examined separately.
And my 12 understanding is he has got some kind of a long-term i
13 commitment the week of the 21st.
1 14 JUDGE SMITH:
Well, I suspect that that's not l
l 15 going to be a problem.
I don't think we are going to be
}
16 completed quite that fast on that fihst week.
17 MR. DIGNAN:
All right.
18.
MR. FLYNN:
Well, another possible solution would 19 be to take part of Applicants' Panel No. 9 and do Mr. Mileti 20 when he is available.
21 JUDGE SMITH:
If it's severable, yes.
22 All right, this gives rise to another scheduling 23 consideration.
We want the parties to work very closely l
24 together in witness scheduling.
The Board really can't l
l 25 handle that.
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2 repeatedly, more often than not the party _would come 2F directly to the-Board and ask for scheduling relief without 4-first trying to work it out with the other parties, and it's
]
5 difficult for us to make these judgments because the parties 6
know better what_the problems are and what their flexibility li i
7 Lis.
So we would expect you to continue to work very, very 8~
closely together to accommodate each other's witnesses and 9
to keep the proceeding flowing smoothly without' voids.
10 If in that process you see that there is going to 11 be a void, you can't avoid a void, we want to'know about it 12-as soon as possible because everybody in this proceeding has 13 other lives to live.
And if we know there is going to be a
^ 14 time out, a holiday in the proceeding, it is better used if
{}
15 we know in advance.
-16 For example, I think it may be difficult for the 17 Board to have a quorum for the hearing on the first two 18 weeks of May.
And it would probably make good sense right 19 now to mark those two weeks out so that they can be used to i
20 maximum advantage by everybody involved in this proceeding.
)
1 21 The people, we can schedule them.
You can get your hair cut 22 and all those eesential things.
23 So if you have other weeks that you know, you know 24 that it's just not practical to have witnesses, the sooner 1
25 you let us know about it the better.
Of course, I realize l
Heritage Reporting Corporation (202) 628-4888 l
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that these are very difficult things to predict because of
~
t( f 2'
the unknown length of cross-examination.
~
3 MR. TURK:
Your Honor, should we mark out those 4
first two weeks of May'as nonhearing weeks?
5 JUDGE SMITH:
Well, I wasn't quite ready to 6
exclude them definitely, but it's become increasingly i
7 obvious that there may be difficulties in proceeding, and it 8
might be helpful to all of us right now to know that so that 9
we can put that time to good use.
I could certainly use it 10 myself personally.
11 I think that if you don't object, Mr. Dignan,_we 12 will block those times out, or we can continue to try to 13 reshuffle Board member schedules to fill in those two weeks.
j 14 But that time we will certainly need a vacation if we have
")
15 been going full time.
(J 16 Mr. Dignan, did you hear me?
17 MR. DIGNAN:
Yes, I did, Your Honor.
If the Board 18 isn't available, the Board isn't available.
There is not 19 much anybody can do about that.
20 MR. TURK:
Your Honor, I would like to ask the 21 parties to stay on the line after the conference call, not 22 that I am suggesting we are anywhere near done.
23 JUDGE SMITH:
All right, we are going to block out 24 the first two weeks of May, Monday the let, and Monday the 25 8th.
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16014 1
Passover begins on the 20th of April.
That is the
()
'2 only other -- let's see, the only religious holiday which 3
may be a problem is Good Friday, and as I understand it, 4
nobody has a problem because the afternoon will be free.
5 Is Passover, is that going to interfere with the 6
hearing process?
i 7
MR. TURK:
Speaking personally, Your Honor, I will 8
not be present for, I believe, three days due to Passover, l
9 but we have other people in the office who will be able to 10 cover the hearings then.
11 JUDGE SMITH:
The 20th, 21st and -- you will not 12 be present the 19th, 20th and 21st.
13 Well, now is the time to be talking and looking 14 down the weeks from March 21st through mid-June to identify l
(~T 15 as far in advance the necessary time off.
I
\\-)
l 16 MR. TURK:
I am not suggesting that we break on 17 those day, Your Honor, because we do have other attorneys in 18 the office who will cover the hearing on those days.
So for 19 the Staffe we can move ahead those days.
20 JUDGE SMITH:
There is always a problem of 21 witnesses.
Just bear in mind that Passover does fall right 22 in the middle of the hearing schedule and it could create 23 problems for witnesses.
Again, the sooner we know about it, 24 the better everyone can put time off for more profitable 25 use.
Heritage Reporting Corporation (202) 628-4888 G('s
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There was some confusion about testimony of -- Ms.
-( )
2 Selick-sent.to -- Ms. Selick.
Ms. Selick sent to Mr.
3
'Whetstine the disks of the direct testimony which is fine.
4 But if there is going to be corrections to direct testimony, 5
we want the electronic version to reflect the corrections.
6 MR. DIGNAN:
Your Honor, it's our plan that after 7
the testimony is finally put in with any correction made --
8 we hope they will be a minimum -- we are. going to run an 9
entire new disk so that what the Board will have in its 10 possession directly thereafter is a disk which as the 11 testimony as it was admitted.
12 JUDGE SMITH:
And you are with us on this too, Mr.
13 Traficonte, on the electronic version of your direct 14 testimony?-
t
(%.)~T 15 MR. TRAFICONTE:
We just may not be able to do it 16 as timely as the Applicants, but we are going to make every l
17 effort to do that.
We are going to do that.
18 JUDGE SMITH:
Time is not of the essence in 19 getting an accurate copy.
As soon as it can be done, but it 20 doesn't have to be done in a matter of days.
21 MR. TRAFICONTE:
All right.
Certainly.
22 JUDGE SMITH:
We certainly want an accurate copy 23 of the direct testimony well before decisionwriting time i
j 24 comes and proposed findings come in.
25-MR. TRAFICONTE:
Right.
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JUDGE SMITH:
And I also want to remind the
/~T 2
parties that it is not'our practice to have lengthy oral V
3 corrections to written testimony.
That is wasteful and 4
creates a confusing record.
Corrections to the written 5
testimony should be marked into the testimony at the time it
]
1 6
is offered, and then we can simply point it out to the j
7 parties where the corrections are.
8 The trial briefs, I thought were good.
I didn't
)
9 sense any efforts to obfuscate the case.
I though that the 10 trial briefs, as I read them, pretty well stated the case 11 unless I am the victim of misdirection, which I don't think i
12 I am.
13 MR. TRAFICONTE:
Well, at least if you were, there 14 was no conspiracy on our part to misdirect you.
15 (Laughter.)
16 MR. DIGNAN:
Your Honor.
17 JUDGE SMITH:
Mr. Dignan.
18 MR. DIGNAN:
There was one other thing I wanted to 19 confirm.
We understand it, I don't know whether it was the 20 Board or not.
It is the Board's plan, with the exception 21 of, for instance, this May hiatus or anything that comes up 22 avoids as you talk, as I understand it is to sit from around 23 one o' clock on Monday to five o' clock, and then sit nine to 24 five Tuesday, Wednesday and Thursday, and then sit a morning 25 session on Friday.
)
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JUDGE SMITH:
Yes.
A'four-day hearing week, 1
2 that's right, generally speaking.
a 3
3 MR. DIGNAN:
And go week to week.
h 4
JUDGE SMITH:
Go week to week with the full I
- 5 realization that problems mighNicome up that a week might.be' i;
i 6
off may be necessary,. but that's it, back to back.
7 MR. TURK:
And the-normal weeks'would..begin-g s4 1
8 approximately noon and end approximately one o' clock?
9 JUDGE SMITH:
Well, you have got it backwards.
10
'151. TURK:
Sorry..
I 11 JUDGE SMITH: 'They would begin at about one, and 1
12 end at noon the following Friday, l
13 "MR.
TRAFICONTE:.Your Honor, a minor matter assto 14 next Tuesday.
I don't know-if we are going to have any 15 objection to this, but could we begin officially aElaround gg
~
16 9:15 instead of 9:00, just.on this Tuesday sinc # there is 17 going to be some orientation and location difficulties?
.I 18 JUDGE SMITH:
That's fine.
l 19 MR. TRAFICONTE:
All righh.
1 20 MR./DIGNAN:< ;Your Honor, the other thing I wanted j
21 to ask from the Applicants' point of view is that you have a i
22 room for the staff and so forth to put things in.
We don't l
23 need a room, but are the rooms and accommodations of that 24 hearing room all right so that if we wanted to, we could 25 bring in some file cabinets, lockable file cabinets and i
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leave them there?-
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2 Jf7DCE SMITH:
Mr. Dignan,.wa have: priority over
{
3
.that room for the hearingr but there vill be other' people.
i
- n.,
ny u
L 4-lOn a few days we will be' moving up to the Tax Court and to j
5o
- the - Bankruptcy Court so.. the already scLuduled meetings can L
6 occur..-But if you can put it'on a dollyfor something, and
- 7 moveLit into-our conference-room,'that will be'under.our i
8' exclusive domain'for the entire-hearing.
Let..me check with e
9 Mr. Pierco.and see if I am correct [on that.
)
i 10 MR. PIERCE:
That's right.
I 11 JUDGE. SMITH:
Yes, we will have a substantial,
j O
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-l 12 sized room, lockable under.our control for the' entire 13 duration;of the hearing.
And if you want to}hr.ve your files Li o
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,i in such a way that they can be whenled-into that rood or 5
14 15
' carried, maybe they won't he that gre tt we will try to
}
16 accommodate all the parties along that line. 'We willitry.to-17 come up with a system'of security; you know, whcre the h
1, 18
'confideritiality is secure.
19 MR. DIGNAN:
We don't even care.
What we can 20 bring.is lockable file cabinets and' leave,them right in the O ',
21, hearing room.
We don't care about taking up space in the.
1 22 conference room.,
23 JUDGE SMITH:
They can't be'le t in the hearing
'i 24 room, I understand, because the hearing room will be 25 reconfigure.
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.MR.
DIGNAN:
I see.
Okay.
~
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JUDGE SMITH:
So'it's your choice.
You know, i
V 3
putting a lock on the file cabinet but bring a truck.
4 MR.'DIGNAN:
Okay.
]
5' JUDGE SMITH:- A dolly 7 so you can move.them if you j
6 wish.
We're trying to accommodate you.
~
4 7
I would ask the Attorney General to review the j
8 transcript of Monday and look at the admonition I gave to i
9 Mr. Fierce.
I haven't reread that transcript, but I was 10 concerned that there was not the ordinary decorum ---I don't i
11 want to use the word " decorum",.but the ordinary deference
.12 given to courts of law that we might expect.
I would-ask 13 the Attorney General's office to review that and to see if 14 they. agree with me, without any further ado to take efforts j
15 to see that that type of incident doesn't come up.
e
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16 MR. TRAFICONTE:
I will do that, Your Honor.
17 JUDGE SMITH:
I have nothing further.
Let me 18 check with my Board colleagues.
19 (Discussion off the record.)
I 20 JUDGE SMITH:
No.
Mr. Traficonte, that storage 21 facility is available to all the parties.
22 MR. TRAFICONTE:
Yes, fine, thank you.
23 MR. TURK:
Out of curiosity, John -- this is 24 Sherwin Turk -- may I ask if you need any more specifics on 25 that proposal to revise the intersection approach, or do you Heritage Reporting Corporation (202) 628-4888 Qf
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want to talk about that anymore?
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MR. TRAFICONTE:
The Commonwealth.is not engaged
' G) 3 in planning.
You know, I don't.want to sound -- obviously 4
this is a serious matter and the Board laay entertain any k
5 number of motions to perhaps dismiss contentions in light of i
6 responses.the Commonwealth would make, or perhaps entertt ir.
7 some possibility of ordering the Commonwealth to do-i 8
something.
All these matters are fairly complex and 9
weighty.
But I will repeat on the record, although it-seems 10 quite obvious to me, that the Commonwealth is not engaged in l
l 11 planning, and we are not intending, for example, to put back
{
i 12 the fixed siren poles.
13 JUDGE SMITH:
Well, Mr. Traficonte, you are f
14 speaking for whom?
Is that your command of the evidence or 15 the facts, or are you --
l 16 MR. TRAFICONTE:
That would be essentially a l
17 lawyer stating what he has learned as a litigant from the l
18 parties that have that information.
19 JUDGE SMITH:
Well, I would have thought that you 20 were expressing the policy of the party.
21 I'm sorry to interfere with your conversation.
j 22 MR. TRAFICONTE:
It's all right.
Frankly, I have 23 never focused on the question that you are putting.
I mean 24 it's quite clear that the Governor is the entity, or the l
25 Governor's office is the entity that ultimately decides the Heritage Reporting Corporation (202) 628-4888 O
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issue as to whether the Commonwealth engages in planning.
.I 2
don't think there is any dispute about that.
3 It's also undisputed that the Attorney General's 4
office and I personally have represented to this Board and 5
to the parties what the position of the Governor is.
Now I 6
say represent and not in the legal sense that we have l
7 represented the Governor as his attorney, but as a matter of 8
a lawyer stating'what the evidence is with regard to the l
9 intentions of the Commonwealth as a government.
10 You were focusing m'e really for the first time on 11 the issue of when the Attorney General makes the oral 12 representation or puts forward the representation in a 13 contention as to what the government of the Commonwealth' 14 intends or does not intend to do, is the Attorney General 15 thereby becoming the lawyer for that government.
O 16 JUDGE SMITH:
Exactly.
17 MR. TRAFICONTE:
And, frankly, that question.has 18 never been put to me before.
I had understood from earliest 19 days my involvement, in my efforts to understand the case, I
20 that the Governor is a distinct constitutional office with 21 its own legal counsel, and that although we could certain 22 state as a matter of evidence and representation what the 23 Governor and the government intends or does not intend to i
l 24 do, by so stating we would not then automatically be in a I
25 relationship of a lawyer and client to that government.
l Heritage Reporting Corporation (202) 628-4888
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- And I' guess-.I really, I mean I cannot state'it any.
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.more: clearly than that.
I.think you are posing'to us the-
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3 question are>you more than that.
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4 JUDGE SMITH:
Well,JMr. Traficonte, that gives 5
rise to'an interesting evidentiary consideration then.
If u
6' the.~ Governor is not your client, and is,.as you would 7
characterize it, I think, nothing more than a witness or a 1
8 source.of evidence, is there a privilege between'you and the 9
. governor as far as your communications are concerned'on.this 10 litigation?
11 You want to think about that one?
-12 MR. TRAFICONTE:
'I'think I would be imprudent if I j
13 didn't answer that by, I'd like to think about that one.
{
14 JUDGE SMITH:
Well, we want a careful response.
MR. TURK:
There is another problem that Mr.
15 pO 16 Traficonte should think about.
We have had several months 17 of discovery on the SPMC and on the exercise. 'Now for the 18
-first time Mr. Traficonte is-saying that he can't represent 19 the Governor or other state agencies..He is merely acting j
c 20 as a funnel channeling"information to us.
- 21 MR. TRAFICONTE:
Oh, no, that's again a l
22 misrepresentation, Mr. Turk.
We had made it clear, I had l
23 thought many times, that we were -- for the purposes of I
24 discovery, we were going to gather the documents from these i
25 various agencies.
And without going back and looking, I can Heritage Reporting Corporation (202) 628-4888 O.
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recall various conference calls.
f'S 2
MR. TURK:
You were doing more than gathering l
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l 3
documents.
You were responding to interrogatories and you j
i 4
were signing interrogatories.
5 MR. TRAFICONTE:
I know I said to all the parties 6
and the Board that we would take the interrogatories, we 7
would send them to the counsels that represent these 8
departments.
They would then poll their department, get an 9
answer and send it back.
I mean it was a classic example of 10 our interfacing with legal counsel for the various agencies.
11 That was clear on the record that that's what we were doing.
12 MR. TURK:
John, I would point out that you signed 13 interrogatory answers.
And in doing so, under Part 2 --
14 excuse me -- under 10 CFR Part 2, only an authorized 15 representative of a party may do that.
7-
~
16 JUDGE SMITH:
Gentlemen, do you think it would be 17 worthwhile to allow you all to go back to your law books and 18 your records and set this down for formal argument?
19 MR. DIGNAN:
Your Honor, I think that would be 20 very definitely in order because before John goes too far on I
21 this one, I do want to remind him that my recollection may l
22 be wrong, it sometimes is, but I do believe the Attorney 23 General asserted in attorney / client privilege with respect L
24 to certain documents we asked for on the basis that the 25 Governor was the client.
And I'm not saying that's so.
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l' am saying that's my recollection.
And I would strongly l
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suggest that everybody might be better served if a
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considered and careful answer is formulated by the Attorney l
{
4 General's office before we take this any further.
5 JUDGE SMITH:
The Board will set that down for I
6 oral argument.
I think that it would be a good idea to set 7
it down on the first day, if that is enough time, and wo 8
will, in particular, call upon the Attorney General, the l
l 9
lawyers for the Attorney General as a part of their 10 responsibilities, as part of their notice of appearance 11 here, to make a total, complete disclosure to the Board 3s 1
12 to what their standing is, what their view of the law is and 13 what their position is.
That, of course, is a requirement l
14 for all the lawyers who make this argument, but I thought it 15 perhaps was a little bit more relevant to the Attorney s
I
\\
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16 General.
17 It is your responsibility as counsel, as a lawyer 18 filing an appearance here, to make a total disclosure and 19 complete revelation to the Board as to the issues that we 20 have discussed this morning.
j l
21 MR. TRAFICONTE:
I understand, Your Honor.
22 JUDGE SMITH:
That is more than just not 23 misleading the Board.
We require a tot,al, complete 24 explanation.
25 MR. TRAFICONTE:
I understand, Your Honor.
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' JUDGE SMITH:
Is there ttything further?
I L
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2 MR. DIGNAN:
Your Honor, an inquiry.
Did the
\\_)
3 phone system from us to you work to your satisfaction, 4
because I think we --
5
. JUDGE SMITH:
It's going to be some frustration to 6
you, Mr. Dignan, to know that your voice tends to be weak.
J r
.7 Mr. Traficonte's is strong, resonant, persuasive..
8 MR. DIGNAN:
That is the way of the world, and our 9'
natural personalities, Your Honor.
10 (Laughter.)
11 MR. DIGNAN:
The only reason I ask is because we 12 have been trying to overcome the problem that apparently was 13 existing, and I wanted to know how many situations today I 14 was overriding which you were disturbed about.
15 JUDGE SMITH:
There was a time where somebody else O
16 was overriding you, and I think Mr. Traficonte is on a 17 speaker phone today.
18 MR. TRAFICONTE:
No, I'm not.
I'm on my own hand-19-held phone.
My speaker phone is not working for some 20 reason.
21 JUDGE SMITH:
It seems to be working better today.
22 We haven't had the problem.
23 MR. DIGNAN:
All right.
I think we have solved 24 what was the problem.
25 MR. TRAFICONTE:
Before we get off, I would just Heritage Reporting Corporation (202) 628-4888 O
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'like to: request that the stenographer.please get to me r 2
' tomorrow, if'possible, a copy of today's transcript, and 3
O 3
that's John-Traficonte requesting that.
4 THE REPORTER:
Very well.
5 JJUDGE SMITH: _All right'.
If there is nothing 6
further, we will.see you in Boston.
That's all we have.
We 7
are prepared to adjourn if there is nothing further.
8 MR. TURK:
Your Honor, I would like to ask Mass.
t 9
AG and Applicant and Mr. Flynn to stay-on so we can talk 10 about witnesses for a few minutes.
11 MR. TRAFICONTE:
All right.
12 JUDGE SMITH:
We are adjourned.
Thank you.
13 (Whereupon, at 11:12 a.m.,
the prehearing 14 teleconference_was adjourned.)
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24 25 Heritage Reporting Corporation (202) 628-4888
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CERTIFICATE r^T-i
(_/
2-3 This is to certify that the attached proceedings before the 4
United States Nuclear Regulatory Commission in the matter 5
of:
6 Name: Public Service Company of New Hampshire, et al.
(SEABROOK STATION, UNITS 1 AND 2) 7 w
8 Docket Number: 50-443-OL 50-444-OL 9
Place: Bethesda, Maryland i
10 Date:
March 15, 1989 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the
(])
15 direction of the court reporting company, and that the 16 transcript is a_true and accurate record of the foregoing 17 proceedings.
_)
nA 18
/s d
()
19 (Signature typed) :
Raymond M.
V'tter e
20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 l
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