ML20244A904
| ML20244A904 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/07/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8767 ASLBP, OL, NUDOCS 8906120188 | |
| Download: ML20244A904 (251) | |
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UNITED STATES ) NUCLEAR REGULATORY COMMISSION - 4 mi 1 l * . v . ==================,m=====================================> . ATOMIC SAFETY AND LICENSING BOARD In the Matter of: ) -
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL { NEW HAMPSHIRE, et al., ) 50-444-OL 1
) OFF-SITE E!ERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING >
EVIDENTIARY HEARING
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) . Pages: 24363 through 24609 Place: Boston, Massachusetts . Date: June 7, 1989 e i======================================================= i(,0!
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O \ HERITAGE REPORTING CORPORATION ODMRwasm )g, c@g g-f 1226 L Stemt. N.W., Suite 648 . iF Wanhington. D.C. 20405
,j(10 (202) 628 6 8906120188 890607 PDR ADOCK 05000443 T PDC .
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24363~ - UNITED STATES NUCLEAR REGULATORY COMMISSION l 'l- ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
. ) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING i
EVIDENTIARY HEARING Wednesday, June 7, 1989 Auditorium Thomas P. O'Neill, Jr. Federal Building 10 Causeway Street i Boston, Massachusetts-The above-entitled matter came on for hearing, . pursuant to notice, at 9:05 a.m. BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE RICHARD F. COLE, MEMBER Atomic Safety and Licensing Board
. U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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l I Beritage Reporting Corporation
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24364 APPEARANCES: ig l For the Applicants: l THOMAS G. DIGNAN, JR., ESO. l l GEORGE H. LEWALD, ESQ. l
- KATHRYN A. SELLECK, ESQ.
JAY BRADFORD SMITH, ESQ. JEFFREY P. TROUT, ESO. GEOFFREY C. COOK, ESQ. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 For the NRC Staff: SHERWIN E. TURK, ESQ. ELAINE I. CHAN, ESQ. EDWIN J. REIS, ESO. RICHARD BACHMA144, ESQ. Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 For the Federal Emeroency Manacement Agency: H. JOSEPH FLYNN, ESO. - LINDA HUBER McPHETERS, ESO. Federal Emergency Management Agency 500 C Street, S.W. Washington, D.C. 20472 For the Commonwealth of Massachusetts: JAMES M. SHANNON, ATTY. GEN. I JOHN C. TRAFICONTE, ASST. ATTY. GEN. 1 ALLAN R. FIERCE, ASST. ATTY. GEN. PAMELA TALBOT, ASST. ATTY. GEN. 1 MATTHEW BROCK, ESQ. . LESLIE B. GREER, ESQ. Commonwealth of Massachusetts One Ashburton Place, 19th Floor . Boston, Massachusetts 02108 Heritage . Reporting Corporation ,\ j . (202) 628-4838
24365 0 .y APPEARANCES: - (Continued) Epr the State of New St==nahire r GEOFFREY.M.~.HUNTINGTON, ASST.' ATTY. GEN.. State of New Hampshire
~25 Capitol Street...
Concord, New Hampshire ^ 03301 For tha" Seacoast inti-Pollution Lenaue: ROBERT A. BACKUS,_ESQ. Backus, Meyer'& Solomon
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116 Lowell-Street P.O.; Box 516 . Manchester,.New Hampshire 03105 JANE DOUGHTY, Director Seacoast' Anti-Pollution League-5 Market: Street Portsmouth, New Hampshire -03801. Egy the Town of Amesburv; BARBARA _J.. S A I N T ' A N D R E ',', E S Q . ., Kopelman and Paige,.P.C.; , , 77 Franklin Street-Boston, Massachusetts WILLIAM LORD Town Hall-Amesbury, Massachusetts. 10913 1 1 For the City of Haverhill* and Town of Merr4mme ASHOD N. AMIRIAN,iESQ. j P. O. Box 38 :I Bradford, Massachusetts 01835 '
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i For the City of Newburvoort , i BARBARA J. SAINT ANDRE, ESQ. 1 JANE O'MALLEY, ESQ. d Kopelman and Paige, P.C.- ,
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77 Franklin Street . l Boston, Massachusetts 02110 l 1 1 Beritage Reporting Corporation- !
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24366 9
.g-APPEARANCES: (Continued)
For the Town of Newbury: R. SCOTT HILL-WHILTON, ESQ. Lagoulis, Clark, Hill-Whilton & McGuire 79 State Street Newburyport, Massachusetts 01950 For the Town of Salisburv: CHARLES P. GRAHAM, ESQ. Murphy and Graham 33 Low Street Newburyport, Massachusetts 01950 l For ,the_. Town of West Newburv: JUDITH H. MIZNER, ESQ. Second Floor 79 State Street Newburyport, Massachusetts 01950 For the Atomic Safety and Licensine Board: ROBERT R. PIERCE, ESQUIRE Atomic Safety.and Licensing Board i U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 l r-e i i Berit, age Reporting Corporation (202) 628-4888
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24367 f e ,r I E D' E K
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WITNESSES: DIRECT CROSS REDIRECT RECROSS EX&M 1 Robert L. Goble
-by Mr. Traficonte 24498
-by Mr. Dignan 24559 by Ms. Chan 24597 by Judge Cole '24607 I
i i 1 i i e EXHIBITS: IDENT. REC. REJ. DESCRIPTION: Massachusetts Attorney General: 110 24497 24497 Testimony of Dr. Albert l E. Luloff on Behalf of the Massachusetts-Attorney General I 111 24497 24497 Testimony of Dr. Colin . J. High on Behalf of l the Massachusetts ' Attorney General >
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(. / 2 JUDGE SMITH: Good morning. 3 Is there any preliminary business? 4 MR. FIERCE: Your Honor, we're prepared to argue 5 three of the motions in limine this morning. That would be 6 with respect to the testimony of Dr. Luloff; the testimony 7 of Carol Sneider; and, the testimony of Dr. Colin High. 8 JUDGE SMITH: Proceed. 9 MR. FIERCE: I would like to take the Luloff 10 motion up first. 11 The motion in limine with respect to Dr. Luloff 12 really raises a single issue and that is that the testimony 13 presents an analysis of the current population figures for
;/) 14 Massachusetts which uses a methodology which was previously 15 litigated in the New Hampshire proceedings and cannot be 16 relitigated here again pursuant to the principles of res 17 judicata, according to the motion.
18 The Mass AG doesn't dispute that the methodology 19 Dr. Luloff used to present his current population figures 20 for New Hampshire is the same as the methodology that he has
., 21 utilized here to present what he believes to be a better 22 e estimate of the curr'nt population figures for the 23 Massachusetts communities.
24 What we do dispute, howevgr, is that the doctrine 25 of res judicata or as we would call it the doctrine of issue l [/7 l
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24370 1 preclusion applies in this situation, because one, if not 2 two, of the critical elements are, in fact, lacking here. 3 The Appeal Board recently decided what I think is, 4 perhaps, the most recent NRC decision where they explain the 5 doctrine of issue preclusion. It is not cited in the 6 Applicants' motion but it's a case I'm sure the Board is 7 familiar with involving the Dolly Weinhold petition. 8 And in that ALAB decision -- actually, I believe 9 this may be, the one I'm looking at, Your Honor, is your 10 decision of January 30th. You set out the elements of the 11 doctrine of res judicata, as you call it-here, with respect 12 to precluding issues for litigation. 13 And I don't disagree with your statement of them.
.14 You say that they.have to raise issues that involved -- in 15 prior proceedings, that had actually been raised, litigated, 16 and judged, and the issue must have been material and 17 relevant to the disposition of the first action.
18 I think that's right. I have researched the issue 19 of the current doctrine of issue r icelusion and you probably 20 know, if you go to the handbooks it is filled with a series 21 of often varying explanations of the differences between res ,- 22 judicata and collateral estoppel and offensive and , 23 defensive. 24 I think it is important, however, that the Board 25 understand what the current experts in the field now believe Heritage Reporting Corporation (202) 628-4888 ~ _ - _ _ _ - - _ _ _ _ _ _ . _ . _ _ - . _
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24371 e
, ~x 1 issue preclusion means.
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\s / 2 Because I haven't had time to write a memo on ,
3 this, I did bring along a couple of pages from Wright and 4 Miller that I would like to hand out to you as I further
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5 explain this. 6 (Document proffered to all parties.) 7 MR. FIERCE: In this excerpt we have a section of 8 Wright, Miller and Cooper on the document issue preclusion. 9 And they are going through the elements of it. In the first 10 section that I have reproduced here, section 44.20, the 11 element of an issue actually being decided is discussed. 12 Now it is our position, Your Honor, that with 13 respect to this particular issue, whether the Luloff [^'T 14 methodology is a better methodology or the right methodology
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15 versus the methodology that the Applicants had used, both in 16 New Hampshire for their population figures which essentially 17 is to go to local town clerks, a methodology Dr. Luloff, an 18 expert in the field of rural sociology and demographic 19 statistics in New England, indicated was-a particularly 20 unreliable method for gathering population data.
., 21 And he indicated that he would look at longer term 22 benchmarks to make the projections of what current estimates 23 are likely to be. That issue was litigated with respect to 24 ETEs.
, 25 And, as you probably recall, there was testimony 1 l/s ( Heritage Reporting Corporation N-- (202) 628-4888 1 I
24372 , 1 that we presented through Dr. Luloff on this, and he was 2 cross-examined. I believe it was probably shortly before 3 Thanksgiving in 1987. 4 And then when we submitted proposed findings we 5 did not submit proposed findings on this. And as Your Honor 6 probably remembers, in the decision that you wrote you noted 7 that we had consolidated our proposed findings on ETEs into 8 four major areas. In paragraph 9.33 you said: "The 9 Attorney General elected to consolidate his case into 10 proposed findings on four overarching problems with the ETE 11 analysis and traffic management plan." We did that. 12 And you also note: "We agree with the Attorney 13 General that the problems he has elected to confront in his 14 proposed findings are probably those that require the most 15 serious consideration by the Board." I think that's right. 16 We, presented to you what we thought were the most
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17 serious issues. This case, as you well know, contains 18 myriad issues around. And pray to God, that the parties 19 don't submit proposed findings on every single one of them. 20 That at the end of the hearings they select out those which 21 they think are the most important ones. '* 22 Let me tell you why we didn't think this one.was , 23 one of the most important ones for ETE consideration. 24 Dr. Luloff concluded his testimony in 1987 by 25 showing a difference between the proposed estimates that the Heritage Reporting Corporation (202) 628-4888
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24373 5~ . . .
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1 Applicants.had used for the New Hampshire populati'ons-and j q
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~ 2 his own. The difference was only 4.3 percent.. j 3 Now, I had conferred with Dr. Adler with. respect-i
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4 to what difference.that would make for ETEs,-and based on 5~ where'those 4.3' percent of the popdlation were. distributed, 6 it wasn't going to have a major effect on ETEs. 7 The' upshot'is, we didn't submit proposed findings 8 on it. The Applicants, in their proposed' findings which 9 were submitted before ours, I would have you note -- if.you
.b 10 would like to take a look at them, I have them here, too.. !
i 11 But in their proposed findings they noted that Dr. Luloff- , 12 had presented the testimony that'he did.
. 13 They also noted that their own population figures, 14 the estimates they had compared well overall with the
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15 estimates of the New Hampshire State-Office for Planning. 16 You do,not find in here a proposed finding.that-asks the 17 Board to reject the Luloff methodology. 18 I believe the Applicants are suggesting here in-19 their proposed findings that the. numbers are close enough .; 20 and adequate.for ETE-purposes.
., 21 JUDGE SMITH: Give me those proposed findings.
22 again, would you please? We have them here, but if;you have 23 copies, j 1 lL 24 MR. FIERCE: I havg copies of those Applicants' l i 25 proposed findings. ] l l l O' Heritage. Reporting Corporation (202) 628-4888-
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24374 , 1 JUDGE SMITH: We have a single copy here. 2 (Document proffered to all parties. ) 3 MR. FIERCE: It's around 6.1.54. 4 JUDGE SMITH: Yes. 5 (Pause while the Board reviews document.) 6 MR. FIERCE: May I proceed? 7 JUDGE SMITH: Yes. 8 MR. FIERCE: So that being the state of affairs, 9 Your Honor, in the decision that was written at paragraph 10 9.2.9 which is on, if you have the printed version, on page 11 782 of 28 NRC in the advance sheets, the panel noted who the 12 Attorney General had presented as witnesses. And noted that 13 Dr. Luloff, Professor of Rural Sociology and Community 14 Development from the University of New Hampshire, was one of 15 the Mass AG witnesses. 16 And it just notes in that last sentence in that 17 paragraph: "Nor did the Attorney General follow through on 18 Dr. Luloff's testimony 'on population growth rates and i 19 population distribution within the EPZ." And there's a 20 reference to the proposed findings. 21 That's all there is here. -
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22 JUDGE SMITH: Yes. . 23 I think it is significant here that the reference 24 to the Applicants' groposed findings was not a reference to 25 the statement that the Attorney General did not follow Heritage Reporting Corporation (202) 628-4888 ! l l 1
24375 i.
- 1 through. It was a reference to the findings proposed by'the \s ,e 2 Applicants countering Dr. Luloff's methodology. ,
3 I just want to point out a less than clear 4 decision writing here.' It may be thought that we use as a 5 support for the. statement that the Attorney General did not 6 follow through on Dr. Luloff's testimony as Applicants' 7 proposed findings; that is not the fact. 8 The Applicants' proposed findings, as you point 9 out to us, are factual findings and not a statement that you 10 didn't follow through. 11 MR. FIERCE,: I agree with that. 12 JUDGE SMITH: I understand that. . 13 MR. FIERCE: I do not agree that Applicants' 14 proposed findings challenge the methodology. They merely \ 15 note that their own figures for New Hampshire compare well 16 with th'e New Hampshire Office of State Planning estimates. 17 JUDGE SMITH: Yes: 18 MR. FIERCE: Dr. Luloff's figures are not that far 19 off from theirs either. They make it a "no, never mind." 20 That's what has happened here. We didn't propose findings
,, 21 on it.
22 I'll tell you, Your Honor, if we had I would have 23 proposed that Dr. Luloff's methodology, even though it's 24 only a 4.3 percent difference, be adopted, because he is the 25 expert and they are not. They had no basis for any expert [ Heritage Reporting Corporation (202) 628-4888
24376 1 testimony. 2 JUDGE SMITH: Well, I know. That's,why we have , 3 lawsuits to decide these things. 4 MR. FIERCE: It wasn't decided. Lawsuits 5 sometimes don't decide issues, which i's why the entire j 6 doctrine of issue preclusion has arisen. i 7 If you will take a look at the Wright and Miller j 1 8 piece, they indicate that very clearly. That in some cases
. 9 there are issues in pieces of prior litigation which do not
'l 10 get decided. And in that event, yes, they can be litigated l l
11 again. And,it goes on to explain policy reasons why tlat , i 12 still makes cense. . 13 It doesn't make sense, Your Honor, in every piece 14 of litigation to have the parties pressing as hard as they 15 possibly can to have every issue decided. That would ; 16 certainly make a very difficult first trial. And I don't j l 17 think Your Honors want to have that kind of situation here i 18 at NRC, proceedings. ; i 19 This in a very important ruling you're going to 20 make. It would mean that every party is going to litigate 21 to the hilt every issue in every case if they think there is .- y 22 another piece of the proceeding that's going to follow, , l - 23 because another issue might depend on it more importantly l 24 than it does now. 25 The proposed findings would be monstrous, i !\ Heritage Reporting Corporation (202) 628-4888 O9 ! i l j
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;7" 1 Your-Honor,annder that kind of a world.
~ 2 Most of the-issues - let me tell you Ethis, that 3 most of the issues, I would wager 98 percent of the issues.
4 that we did not press in proposed findings last time around,
'5 we are not pressing now.
6 JUDGE SMITH: . Well, all right. 7 'I want to t<.1 you right now,.too, that if you 8 don't propose them, ou are done with them. The'next-Board 9 in this. case, if we ever.have one, is not going to 10 relitigate, I hope, what we're litigating now. 11 As I recall, up there in New Hampshire we had a 12 lengthy thing with Dr. Luloff. We had a motion, the same 13 thing, we had a motion in the form of objections to.his --
, 14 MR. FIERCE: Projections out to year 2010. \
15 JUDGE SMITH: -- projection in the' future and a 16 big argument about that. 17 MR. FIERCE: Yes. 18 JUDGE SMITH: And they prevailed in part and you 19 prevailed in part. I think we allowed a short period as 20 being consistent with currency. And they took tho' stand,
.. 21 and he was cross-examined. And you never, despite the fact 22 that the Board had admonished parties that we weren't 23 supposed to continue on issues that were no longer in 24 dispute, you didn't withdraw Luloff; you just were silent.
25 You didn't say to us, never mind finding Luloff. Baritage Reporting Corporation
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24378 i 1 You allowed us to search out what the Applicants had to say ; 1 2 about it. Search through 100 and some pages of proposed 3 findings on your part to see where you would pick up the 4 Luloff testimony only to find out at the end that you had 5 not pursued Luloff. 6 Now you say, well, we warned you upfront that we - 7 had focused on four pieces, right. But, sure, one of those 8 was Dr. Ceder's criticism of something else. And we 9 searched in vain to try to find where that was. 10 The Board has already invested, and I'm sure that 11 the lawyers have already invested, a considerable amount of ) l 12 time in Dr. Luloff's methodology. 13 And now you're asking, since you have abandoned it
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14 at the proposed finding stage, you're asking to have a new 15 shot at it, j i 16 Well, there's another aspect to, of issue 17 preclusion, and that is what happens when an issue is 18 dismissed. Is it with or without prejudice? Are you free 19 to bring it up again or not? 20 MR. FIERCE: When you're talking about dismissal, 21 Your Honor, I think you mean claim preclusion which is a - 22 completely separate doctrine. .i 23 JUDGE SMITH: No, I'm talking about withdrawn. o 24 MR. FIERCE: This is an issue, not a claim. 25 JUDGE SMITH: But there are certain aspects. Heritage Reporting Corporation
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24379 f'~N 1 MR. FIERCE: When claims get withdrawn and claims (
- 2 are dismissed that?s a different --
3 JUDGE SMITH: Mr. Fierce, the point I'm making is 4 that people 'are given, usually, an. opportunity to put their 5 adversaries'and the tribunal to the effort of d'ciding e 6 things once and only once. And when you change your mind 7 about it, usually that's it. 8 MR. FIERCE: Usually, but not always. 9 JUDGE SMITH: All right. 10 MR. FIERCE: I'm trying to explain it, Your Honor. 11 JUDGE SMITH: But I'm just telling you that that 12 is the philosophy. Now, I haven't read Miller and Wright, 13 and I will.
/ \ 14 But the philosophy is that, you ha'ev your shot at U 15 it and you put your adversaries to the burden of preparing -
16 for it, defending against it as presumably they had to
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17 prepare against Luloff. And they will go to all this and 18 argue the motion. And to put him on the stand and cross-19 examine him. And to propose findings as they were required 20 to do at their own peril, if they had failed to do it. And 21 for the Board to search through the record and search
. 22 through the pleadings to determine what the state of dispute 23 is. And then finally say, well, we decided it wasn't 24 important, but now we think it's important.
25 You do have a burden. You do have a burden. And 7x ,
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1 24380 - 1 we're going to look at Miller and Wright and we're going to 2 look at your pleadings. But I'm telling you, you begin with 3 a problem after all of that. 4 - MR. FIERCE: All I can say, Your Honor, is just be 5 careful here. I understand what you are saying and the 6 parties, I think, are trying to act responsibly here. 7 We have a procedure for filing proposed findings, 8 which I believe is a valuable procedure in NRC proceedings. 9 If a ruling today is that every issue that gets litigated 10 has to be pressed to the hilt so that even -- whatever its 11 relevance to the ultimate outcome, then I'm not sure we have 12 any value in the proposed findings. 13 JUDGE SMITH: Well, I want to put you on notice 14 right now, that any issue that is litigated here that you 15 don't advance in your proposed findings, then that's it. . 16 You have defaulted on that issue. P 17 MR. FIERCE: Your Honor, I think that is an 1 18 entirely novel and radical departure from the principles of 19 res judicata, as you yourself have articulated them in the 20 Weinhold opinion. 21 JUDGE SMITH: Go back over that ground. 1 22 MR. FIERCE:
.1 That is a radical and very novel {
23 notion. I l 24 JUDGE SMITH: That I just expressed? l l 25 MR. FIERCE: Yes. 1 Heritage Reporting Corporation j N (202) 628-4888 * '
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/"'N l' JUDGE SMITH: Well, let me.see what the
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'2 regulations might think about that radical novel notion.
3 (Judge consults _ document.) 4 MR.. FIERCE: This is;an issue. 'An issue, Your
- 5. Honor. It could be-a very,, very minor one' dealing with some 6 basis of a lengthy series of bases-to some contention. An-7 issue.
8 The issue in the earlier proceeding was not1seen 9 by the parties to have'been' material'to the outcome of the 10 decision. So they didn't press the Board to find it. 11 I submit'that is doing the Board a favor. 12 JUDGE SMITH: I don't want'to digress-too long on 13 this argument. And the Board will put the parties on notice 14 that any issue pertaining to which you-do.not file proposed 15 findings you will be deemed in default. 16 MR. FIERCE: Then, you are then,_in that manner 17 right there, Your Honor, forcing the parties to submit to 18 you, I am certain, much, much, much lengthier proposed 19 findings than they would want and that you would need in 20 order to decide this case.
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24382 . 1 MR. FIERCE: You are tripling your work cut out 2 for you. 3 MR. TROUT: Your Honor, I would direct your 4 attention to Section 2.754 (b) . 5 JUDGE SMITH: Right. 6 " Failure to file proposed findings of fact, 7 conclusions of law or briefs when directed to do so may be 8 deemed a default. An order or an initial decision may be 9 entered accordingly." l 10 I don't even need a regulation for that. That's 11 basic fundamentals. 12 MR. FIERCE: I agree it's basic fundamentals, but 13 I think it's being misapplied here. It says -- 14 JUDGE SMITH: Well, now, wait. That's different. 15 MR. FIERCE: It's a failure to -- 16 JUDGE SMITH: You may argue, if you wish, that it 1 17 should not be applied in this situation. That's a different i 18 thought. ' 19 But you just on two occasions warned the Board 20 that we were applying a novel.and irresponsible theory of 21 law to the forthcoming proposed findings. And I'm telling 22 you, novel or whatever it is, that's the law of this case l
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23 and you are going to comply with it or suffer the default - l 24 presumption. l 25 MR. FIERCE: I just wanted to comment that I Heritage Reporting Corporation
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r 1 believe the proper ' interpretation' of 754 (2) (b)11s that a
\"' 2 failure'to file proposed findings when directed'to do so is- l 3 a default. ;
1 4 JUDGE SMITH: Right. - 5 MR2 FIERCE:' A failure to file. We filed, and I 6 believe we filed in a proper way. . 7 JUDGE SMITH: And I'm telling you right now as to 8 any issue where you failed to file, you will be deemed in 9 default. 10 MR. FIERCE: That, I believe, again, Your Honor, i 11 with all due. respect, is a very novel and very radical l' 12- proposal.
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13 JUDGE SMITH: Then you remove all purpose of the l 14 requirement to file proposed findings. [' ' 15 MR. FIERCE: No, we don't. 16 JUDGE SMITH: All you have to do is file two pages 17 of proposed findings. Find for us on the record. Signed 18 yours truly, Allan Fierce, and leave open all of the issues. 19 That is just ridiculous. i 20 MR. FIERCE: But you know that's not what we would
*- 21 do either, Your Honor.
. 22 JUDGE SMITH: It is novelly ridiculous.
J 23 MR. FIERCE: I submit to you, Your Honor, take a 24 look at Wright & Miller,-pull out the Mores on Federal 25 Practice, go read the cases.
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24384 . 1 JUDGE SMITH: All right, Mr. Fierce, you point 2 out -- this is a rather lengthy discussion from Wright & 3 Miller and we had hoped to run through these motions this 4 morning. - 5 ./ Do you want us to read it all? 6 MR. FIERPM: Well, I would direct your attention. 7 to 4420. I also would direct your attention to 4421. 8 Another element, in fact, it's mentioned by Your Honor in 9 the Weinhold decision, is that even where you make a 10 decision, which I claim has not been made here with respect 11 to this issue, the methodology Dr. Luloff applied, even 1 12 where it's made, it has to be necessary, material and { 13 relevant to the disposition of the first action. 14 Now, Your Honor, this is the situation. The 15 reason we didn't submit proposed findings on it, is because 16 whether or not his methodology was adopted, the population 17 figures were going to be roughly the same and it was not 18 material or relevant to a determination of whether the New 19 Hampshire ETEs were sufficiently realistic for the purposes 20 of these proceedings. 21 JUDGE SMITH: Well, aren't you doing somewhere ; 22 along the line in your papers this morning, you are doing . 23 the other side of your argument. You are using information 24 that was developed for ETE purposes and you are having us, I 25 believe, apply it to the reception center. l i l , Heritage Reporting Corporation (202) 628-4888 i l l 1
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~~ 1 You know, you are transferring the.information and
(_,) 2 applying it across the board. 3 MR. FIERCE: Well, let me explain the distinction. 4 We are also submitting the Luloff testimony for 5 ETE purposes here, and we are going to be arguing that it's 6 mater $al and relevant, and it's for this simple fact. 7 That in'the bottom of his testimony this time,. 8 when he compares the numbers he's come up with the numbers 9 that are in the plans, it's at least double the difference 10 that it was in New Hampshire. Where it was only 4.3 percent
'1 11 difference, he's up over 9 percent, heading toward a 10 12 percent difference. l l
13 We think that is significant, and we -- 14 JUDGE SMITH: Well, no, I guess I'm talking about 7'"x
-- 15 the occupancy rate, I think, when we get farther in your 16 papers.,
17 MR. FIERCE: That's a different issue here. l 18 JUDGE SMITH: Well, I know, but isn't.your same j
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19 idea, except you are on the other sido of the. issue, is that 20 when we tried to estimate the beach population by counting I
., 21 cars and applying occupancy rate for the purpose of 22 estimating evacuation times.
23 Now you are taking the same information developed 24 for that purpose, and the argument can be made it wasn't 25 material for that purpose because a protective act' ion Heritage Reporting Corporation ( (202) 628-4888
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- 1 decision would not be affected. But you are applying it now 2 to reception centers in a very, very precise way.
3 MR. FIERCE: It's clearly material to that issue. 4 JUDGE SMITH: Okay. But Luloff's -- 5 MR. FIERCE: Luloff's testimony --
- 6. JUDGE SMITH: Luloff's population estimates were 7 not --
8 MR. FIERCE: The only issue it ran to in the New 9 Hampshire proceedings was ETEs, and it clearly was not 10 relevant to a decision whether those ETEs -- 11 JUDGE SMITH: When you say "not relevant", what 12 you mean was you couldn't prevail with his testimony there. 13 Therefore, you abandoned it. i 14 MR. FIERCE: No. I could have prevailed, Your 15 Honor, and I believe I should have prevailed, because he's 16 the expert. They had no experts. They were using -- 17 JUDGE SMITH: Then why didn't you cite it? 18 MR. FIERCE: It only made a 4.3 difference in 19 population -- 20 JUDGE SMITH: Then it wasn't material. 1 21 MR. FIERCE: -- which had virtually no impact on ,, 22 ETEs. t 23 JUDGE SMITH: Exactly. 24 MR. FIERCE: For Massachusetts, it does, and we l i 25 are pressing it here now, because here is'where it's Heritage Reporting Corporation ! l (202) 628-4886 l l - l l \ 1
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24387 gh-- 1 material and relevant.
'I You-are saying it 2 JUDGE NMITH: Oh, I see.
3 didn't matter in New' Hampshire, but -- ! 4 . MR. FIERCE: The way the litigation played out the 5 impact of that 4.3 percent difference on ETEs -- 6 JUDGE SMITH: Okay. 7 MR. FIERCE: -- currently didn't have a 8 significant impact. The truth was that probably I should not have come 1 9 10 back with the supplemental testimony from Dr. Luloff after l 11 his piece had been stricken in New Hampshire. It.was a knee 3 j 12 jerk. j l 13 We argued the motion. Your Honor ruled that it j
~ / 14 was relevant up to the current period. And I asked Dr.
k.
\- 15 Luloff to submit testimony just up to the current period.
16 But Dr. Adler then got back to me and said it was 17 only the longer range numbers that had the real impact on 18 ETEs. i 19 JUDGE SMITH: I'm sure you didn't occupy.the 20 Board's time and your friends on the opposite' side of the
. . 21 aisle, they didn't occupy their time and Dr. ' Luloff's time i
22 and -- 23 MR. FIERCE: The PC came back with the 24 supplemental piece that he ultimately submitted, Your Honor. 25 I have it here. It was very brief. That cross-examination t (" Heritage' Reporting Corporation
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24388 1 took very little time. l 2 JUDGE SMITH: Okay. , 1 3 MR. FIERCE: And as I look at their proposed 4 findings, I see two, two proposed findings. - 5 JUDGE SMITH: Two is more than none. 6 MR. FIERCE: It was a very minor issue in the New { 7 Hampshire case, and it was not material to a decision on 8 whether those ETEs were sufficiently realistic, because it 9 didn't make a difference. The numbers were so close. 10 So I submit under any -- l 11 JUDGE SMITH: You do have one thing going for you. 12 Although we acknowledge the Applicants' proposed findings ] 13 and came out using that methodology in our decision, we also , i 14 found that it was not likely to be material to the
. 15 protective action decision. We also found that.
I 16 However, nevertheless, it does not mean that the 17 subset' of evidence is not material to that decision. That's 18 a different point. I mean evidence can be relevant and 19 material and we can come out at the end and say that the 20 result is not material. 21 MR. FIERCE: Well, there is no question that the , , 22 population numbers are relevant and material to the ETEs.
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23 There is no question about that. j i 24 But for New Hampshire the methodology used to get 25 there is not a material or relevant issue. 1 Beritage Reporting Corporation (202) 628-4888
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24389 1 JUDGE SMITH: Shall we. hear from Mr. Trout'now or ,
>t .
2 do you have further argument?.
'3 MR. FIERCE: That's my. argument on the Luloff 4 motion, Your Honor.
5 . JUDGE SMITH: Mr.-Trout? 6 MR. TROUT:' I' confess I'm.a little perplexed,.Your. 7 Honor, to hear Mass AG argue that an issue and a piece of 8 -testimony that they-pressed over's motion in limine, over 9 extensive-argument, was not.only. deemed'by them to be 10 immaterial and irrelevant, but t$ hat somehow the Applicants 11 and the Board were supposed to discern, and the Board was 12 supposed to rule that it was immaterial and irrelevant. 13 I perhaps could see the argument being made more 14 readily if. Mass AG had proposed a finding in New Hampshire 15 that there was no need to decide between the methodologies, ~ 16 Applicants' methodology and Dr. Luloff's methodology, 17 because it wouldn't make any difference. 18 If Mass AG had articulated the thinking,that Mr. 19 Fierce now tells us was the thinking of the Mass AG's 20 office, then perhaps I could see their argument,-because l 1 21 then the Board would have a clear situation.in front of it. 22 The Applicants arguing the' merits saying, in our proposed , 23 findings, here is-what Dr. Luloff says the methodology 24 should be in Finding 6.1.55, and in 6.1.56, and saying our j i 25 methodology comes up with the right numbers. And thra the j I i l Beritage Reporting Corporation i (202) 628-4888 l
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________E ___
24390
^
4 1 Mass AG would have come back and say it doesn't matter. 2 If the Board has been faced with that situation, I 3 could see perhaps Mr. Fierce's argument. 4 But to have a situation where the issue is pressed 5 on the merits, were litigated on the merits, cross-examined 6 , on the merits, Applicants propose findings on the merits, 7 and so far as the Board and the Applicants can tell, Mass AG 8 does not Mbandon their argument in the sense that they no l l 9 longer say it matters. They just don't come up with a l 10 proposed finding on it. 11 Then I don't think the Board was left with any j 12 alternative but to decide it, and in fact it did decide it, 13 because the issue was there. It was in Applicants' proposed 14 findings. The Board didn't have the benefit of what Dr. 15 Adler purportedly told Mr. Fierce that it didn't matter to 16 the ETEs, and I thfak it was decided. 17 They had their chance to litigate this issue of 18 methodology. They did litigate it. For reasons of their l 19 own, they decided not to take the final step in presenting 1 20 their own case. But I think that's just too bad, Your 21 Honor. I don't think that they can use that decision of , , 22 their own for their own tactical purposes to come back now
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23 and say, well, let's litigate the whole issue all over 24 again. 1 25 (The Board confers.) l Heritage Reporting Corporation (202) 628-4888
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'{
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24391
-- 1 JUDGE SMITH: Do you wish to be heard?
't
\
s 2 MR. TURK: Tour Honor, it's my recollection that 3 during the New Hampshire phase of the hearings at least one 4 of the contentions pressed by the Mass AG dealt with the 5 population estimates for the EPC. Unfortunately, I don't 6 have the contention book here. 7 MR. FIERCE: No, it was a basis in an ETE 8 contention. 9 MR. TURK: It was. 10 MR. FIERCE: It was a basis in an ETE contention. 11 MR. TURK: That's right. 12 Ultimately the Board decided to accept the NHRERP 13 evacuation time estimate study which included its population
N 14 estimates. ,
15 So the issue has been decided. . 16 MR. FIERCE: No. 17 MR. TURK: It was raised -- it was raised as part 18 of a contention. 19 MR. FIERCE: No, the population issue was decided I 20 absolutely. The population issue in New Hampshire is not 21 the issue we're talking about here right now. 22 We're talking about a methodology used to derive 23 population estimates in New England. 24 MR. TURK: The NHRERP included population 25 estimates not just for New Hampshire, but for the entire t Beritage Reporting Corporation I \m. (202) 628-4888* I j _._________J
24392 . 1 EPZ. 2 As the Board is aware, the Volume 6 is an EPZ-wide 3 document. So I think the issue has been decided on a broad 4 basis. - 5 MR. FIERCE: Population issues in New Hampshire, 6 we are not disputing here, Your Honor. Clearly, we've got 7 another element and concern within the doctrine of issue 8 preclusion is changed circumstances. 9 Dr. Luloff is clearly e.rguing there is changed 10 circumstances now. We've got another year's worth of growth 11 in the Massachusetts communities, more than a year since he 12 testified the last time, and he's presenting that updated 13 information. 14 The issue of the methodology which is a better 15 methodology? If we were to debate it today and bring the
- 16 experts in and really battle it out, town clerk numbers are 17 notoriously unreliable in New England says Dr. Luloff, an 1
18 expert in New England rural sociologf and demographics. We 19 have got nobody on the other side who is an expert who is 20 saying, yes, they are reliable. 21 The issue, if we were to press it, would, I - 22 believe, come out the way we hope it will, which is Dr." . 23 Luloff's methodology is the preferable one. It does have n j 24 some impact here in this piece of litigation. Let's resolve ! l 25 it this time. l Heritage Reporting Corporation (202) 628-4888 l l A
24393 1 It is not resolved in the Board's opinion. There
<__N x
, ) 2 is not a decision that the methodology used by Or. Luloff, 3 an expert in the field, has been rejected by the Board in 4 favor of town clerk number:3. Because, because why?
5 It would be an arbitrary and capricious decision. 6 There was no rebuttal testimony to Dr. Luloff. None. 7 JUDGE SMITH: Mr. Turk? l 8 MR. TURK: That's all I had, Your Honor. 9 JUDGE SMITH: I don't know if you are right or 10 not. And I don't think you are sure. 11 (Laughter) 12 MR. TURK: Well,. I'm certainly sure on a broad 13 level, Your Honor, in accepting the ETEs. Part of that was s 14 accepting th'e idea that the population was correctly (
'v) 15 estimated.
16 Otherwise, you can't accept an ETE because you 17 don't know how many people you are assuming are going to be 18 in the stream. 19 JUDGE SMITH: We don't have to decide that, 20 though. 21 I think we will take a break and read your 22 citation. 23 MR. FIERCE: All right. 24 JUDGE SMITH: This is going to take, I can see, a 25 long time this morning. n ( ) Heritage Reporting Corporation
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24394 -
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1 We are going to break right now. 2 (whereupon, a recess was taken.) 3 4 5 6 7 8 9 10 11 12 I 13
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l 14 15 16 17 18 19 l 20 21 22 . 23 . 24 25 Heritage Reporting Corporation
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.l 24395-1 JUDGE SMITH: We are ready to announce our - >O s,/ 2 decision on this. }
3 We rule that the. issues raised.by Dr.'Luloff's' ' ' 4 testimony were in fact decided and are'res judicata in this 5 proceeding. -
]
6 The arguments'and.theErationale have already.been 7 explained. The testimony.was. offered over the.objectionsLof 8 the Applicants. It was-briefed. It was argued before the 9 Board. It was presented for cross-examination. The matter. 10 was not withdrawn and it was submitted to the Board for a 1 11 decision'and was in' fact decided. That is not in serious - 12 dispute, the issue.as to the methodology for estimating 13 populati,ons. jrs 14 ,. _Th'. point that'I think is now being' stressed by Ii 15 Mr. Fierce was that it was not necessary that it be decided, 16 because Dr. Luloff's input would not have materially 17 affected the outcome of the issue.'- And it's for that reason 18 that they didn't advance the matter in.their proposed 19 findings. 20 I don't believe that that is the proper test that 21 we learn from any source, including Miller & Wright here. 22 The test was not whether the i'ssue could be-decided with our
- 23 without Dr. Luloff's input. The test was, was'it necessary 24 that the issue be decided. , ~
25 And the issue had to be decided. It was properly. l i Beritage Reporting Corporation (202) 628-4888 _ _ . -_-___--__b
24396
. 1 put before us and it was material to the broader issue 2 involved.
3 So this was not a statement, a dictum. This was 4 not something that we just decided to go searching through 5 sui sponte. This was an issue about'which'we had no choice, 6 because of the matter before us, but to decide. And we did 7 decide it after it was fully litigated. I mean, it's just 8 about as traditional and clear cut a res judicata 9 consideration as you are likely to have. 10 Now, the argument has also been made that, well, 11 now it's being given a new application. And the application 12 now is more important than it was in the ETEs. I recognize 13 .that is an argument that fairly can be made. 14 But the difficulty of that, argument would be very 15 persuasive and probably carry the day if Applicants were to l 16 argue today -- if you had never offered the Luloff testimony i 17 and if Applicants were to argue, well, you could have raised 18 the issue of population methodology in New Hampshire, but 19 you didn't, and now you can't raise it now and it is res 20 judicata, j 21 You might very well come back and say, well, it j I
- 22. wasn't material then and it is material now. Therefore, we .'
23 can bring the matter forward. 24 But that's not what nappengd. Indeed, ,you argued l 25 with your most persuasive talents that the matter was
, Heritage Reporting Corporation (202) 628-4888 -
A--mm____..._
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, 24397
~
1- material and sufficiently. material and sufficiently 2 important to get the special leave required by parties in 3 our proceedings to offer rebuttal testimony. 4 ~So that argument, to the' extent'that we can infer-5 it from your -- well, as you actually state it,- it doesn't l 6 carry the day either. 7 This is, to us, a rather. simple matter. This is-8 clean cut, clear res judicata as to the methodology-9 advocated by Dr..Luloff. 10 HR. FIERCE: Your Honor, 2 just wanted to say one
, 11 thing for the record. I am not going to reargue-it. I 12 believe this is going to be a_very important issue on 13 appeal. But I think you indicated there was not n' dispute 14 over whether this issue had been' decided. ,
tO . 15 We are seriously disputing that,'and we pointed to 16 your opinion where we believe the language you wrote then 17 can only be read to indicate that the issue was not decided. 18 And I just wanted to clarify that for the record. . 19 JUDGE SMITH: Okay. 20 MR. FIERCE: The next one is the Sneider motion.
., 21 MR. TROUT: . Your Honor, before the Sneider motion 22 is argued, I would like to just bring to the attention of
~
23 the Board and the parties two omissions in that motion that 24 just came to my attention this morning. I' l 25 On page 2_of the motion at the very top, it. lists ( Beritage Reporting Corporation (202) 628-4888
O l 24398 - i 1 two references to the issue in question. There is, in fact, ! 2 a th'ird reference which I omitted and which I would now like 3 to add orally to the motion, if I may have the Board's 4 permission to do so. 5 It's on page 9 of the testimony. It's the sixth - 6 line up from the bottom of page 9 of the Sneider testimony. j 7 And it is the words " time to monitor handbags". 8 With the addition of that, I believe that the list 9 of items in the motion is complete. 10 The other omission that I would bring to the 11 Board's and the parties' attention would be on page 15 of l l 12 the testimony, there is a reference to the Luloff testimony. 13 And in light of the Board's ruling, I would also ask orally 14 now to supplement my motion and have that cross-reference to 15 Luloff also stricken. 16 (Pause to locate documents. ) 17 JUDGE McCOLLOM: Mr. Trout, where was the 18 reference to the Luloff testimony? ' , I 19 MR. TROUT: It's on page 15, Your Honor, the last
]
( 20 page of text of the testimony. And it is the last sentence d
~
21 prior to the concluding question and answer. The testimony , 22 ends, "Does this conclude your testimony?" Answer, "Yes, it
~
23 does." It's the sentence prior to that exchange which is, 24 "I understand that another witness for the Massachusetts 25 Attorney General has submitted testimony that the total l Heritage Reporting Corporation N (202) 628-4888 i i
I l i J 24399 e 1 Massachusetts population is actu' ally significantly higher i x- 2 than this." l 3 And that, I believe, is a reference to Luloff. f 4 JUDGE McCOLLOM: Mr. Trout. 5 MR. TRO'UT: Yes, Your Honor. 6 JUDGE McCOLLOM: Would you explain page 13 -- 7 MR. TROUT: Oh, yes, Your Honor. 8 The reference on page 13. You will see about two-l 9 thirds, three-quarters of the way down the page there is a 10 little table. Sixty seconds, 10 seconds, three seconds, and , 11 adding that up to 73 second's. I 12 What Applicants are moving to strike is the 13 sentence immediately preceding the table, and then the entry
'~
14 in the table for three seconds average time to frisk
'~'
15 personal items. 16 The sentence preceding it reads, "A couple more 17 seconds per person on average need to be built in to monitor , 18 person items." 19 JUDGE McCOLLOM: And then if that is deleted, then I 20 you say in the table the three seconds average time to frisk
. 21 personal items would also have to be eliminated.
22 MR. TROUT: Yes, Your Honor. I 23 JUDGE SMITH: Mr. Fierce, anytime you are ready to ] 24 be heard on.the motion.with respect to Ms. Sneider. l l l 25 MR. FIERCE: Yes, Your Honor. j I ( Heritage Reporting Corporation j
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24400
- l
{ 1 This is one I'm a little perplexed about, Your 2 Honor, because the motion says that two places in the 3 testimony, and now it's three, the witness alleges that 4 radiological monitoring will be delayed because the evacuees will, contrary to instructions, attempt to carry suitcases I 5 6 into the monitoring trailers. l 7 I think suitcases might not be the appropriate 8 word, but clearly the witness alleges that there are l 9 personal items that need to be monitored. And the problem I 10 have here is that the language in the motion is " contrary to 11 instructions". 12 Your Honor, this is not contrary to instructions. 13 This is definitely something that is part of the procedure
,14 at the monitoring trailers. The contention itself 15 challenges the ability of the ORO to monitor at this 16 particular rate;. that it has been alleged that will allow 17 them to monitor at a rate of 20 percent of the population 18 within 12 hours.
19 And in answers to interrogatories the Mass AG gave 20 as one of its reasons, essentially a reference back to an l 21 answer that the Applicants had provided to us in response to ,. l
- l 22 a question: what is it that makes you believe, what are the l
23 facts, the elements that make you believe you can monitor 24 wi$hin that period of time. 25 That answer was Mass AG's second set No. 63, and l Beritage Reporting Corporation (202) 628-4888
4 24401 rs 1 the answer we got back was that we should look.to )
\- ~ 2 implementing procedure 2.9, "for details for monitoring j I
3 evacuees". 4 So we then did turn to implementing procedure 2.9, 5 and we had in the past, but we turned and we looked again. 6 And one of the details there at Section 5.4.3 (c) is, " Frisk 7 articles'which are hand-carried." It's right in the-8 procedures. We cited this back to them. - 9 Their answer to us was, take a.look at the 10 procedures for monitoring. We cite that back to them in the 11 answers to the interrogatories. 12 Now, let me also point the Board to implementing 13 procedure 2.9, Section 5.6.4. 14 JUDGE SMITH: Well, wait a minute.
\ -
15 Do you agree with what he says? You know, it 16 makes sense to me. He put you on notice. - 17 MR. TROUT: Let me find the interrogatory answer. 18 Mr. , Fierce, do you know which one?' 19 1R. FIERCE: Your answer -- 20 MR. TROUT: No. Your answer to our interrogatory. 0
. 21 Do you know which one we're talking about?
22 MR. FIERCE: I believe it's in response to JI 23 Contention 56. You asked us Interrogatory Question 255. 24 MR. TROUT: All right, 255. 25 This is the response which says -- b g Heritage Reporting Corporation N (202) 628-4888
24402 1 MR. FIERCE: It's a long response. 4 2 MR. TROUT: Yes. j l 3 MR. FIERCE: And down in Item No. 4 we refer you 4 back to your own interrogatory answers. j i 5 MR. TROUT: . Ye s .* 6 MR. FIERCE: Specifically, No. 63 to the Mass ) l 7 'AG's, which is the one -- l 8 MR. TROUT: Which says look at the procedures, i 9 MR. FIERCE: Which says look at the procedures, I J l 10 that the details for monitoring evacuees are to be found in 11 implementing procedure 2.9. ) i 12 And all we are saying is that the steps in that l l 13 process that you have pointed us to, which include frisking ) l 14 articles which are hand-carried, has to be. included in the i 15 time calculation. 16 MR. TROUT: Your Honor, I would respectfully argue l l 17 that this interrogatory answer doesn't even come close to ! i 18 puttipg us on notice that they are going to argue that there ) 19 is some problem with people carrying suitcases and handbags 20 into the monitoring trailer. ! 21 MR. FIERCE: We're not saying it's a problem. ,. 22 7t's just one of the elements that is in the procedure. l
, i 23 They first have to frisk the hands, head and face. )!
24 Did we allege that? No. But certainly you have i 25 got to take that into consideration in your time elements. i 1 1 Heritage Reporting Corporation -I N (202) 628-4888 1 1
i 24403
- i You have got to scan the remaining front of the I f'~s 1 i
N- 2 body, including the legs, the top, the bottom, using a 3 single sweep. That's part of the process. You've got to I 4 include that in the timing elements. Frisking the elbows i 1 5 and buttocks. Scan the remaining back. Then frisk the 1 6 feet and soles of shoes. - 7 I'm not saying there are problems with these. 8 These are just the elements in the process of monitoring in 9 the trailer. 10 And next we come to frisk articles which are hand-11 carried. It's not a problem. It's just part of the i 12 procedure. 13 MR. TROUT: Your Honor, the question that [N 14 Applicants asked -- well, first of all, I think Mr. Fierce k'- 15 will concede that it's not in the contention. 16 MR. FIERCE: Well, first, I think the Applicants 17 need to concede that it's not contrary to instructions in l 18 any way, shape or form. 19 MR. TROUT: No, that's -- we are rapidly 20 deteriorating into an argument of the merits of the
. 21 testimony.
22 MR. FIERCE: Which is where we ought to be, Your 23 Honor, i 24 MR. TROUT: But for the record, it is contrary to 25 instructions for people to carry suitcases -- l l (g
"\ Heritage Reporting Corporation j
N-- (202) 628-4888
m 24404 1 MR. FIERCE: Well, let me direct -- 2 HR. TROUT: -- and bags of clothes into the 3 monitoring trailer. 4 MR. FIERCE: Then let me finish my argument first, 5 Your Honor,,before he responds. 6 Because I was then going to refer to you to the. 7 following section of that implementing procedure. Section 8 5.6 deals with personnel assigned to monitor vehicles. And 9 at two places, at 5.6.4 there is an instruction to the 10 personnel monitoring vehicles if a vehicle is contaminated, 11 one of the instructions at sub part (e) is to inform the 12 passengers to bring nothing larger than an overnight bag to 13 the monitoring trailer. 14 And then at the next procedure, 5.6.5, which is 15 for vehicles which are not contaminated, the personnel are 16 again given the same instruction. Inform them to bring 17 nothing larger than an overnight bag into the monitoring 18 trailer. 19 Those are the instructions, Your Honor. This is 20 hardly contrary to instructions for people to be bringing I 21 overnight bags, purses and other personal belongings with . 22 them into the monitoring trailer. It's just one of the , 23 steps in the procedure. 24 (The Board confers.) 25 Heritage Reporting Corporation (202) 628-4888
1
. .i 24405, !
1 ' JUDGE SMITH: You' lose. I l p 2 We will hear.from Ms.<Sneider.. Now, that's with 1 3 respect to the frisking aspect of it and the personal items.
.I l .4 .W ith respect to excluding the reference which we' infer is in 5 Dr. Luloff's - testimony.
6 'Iha you agree:that that-should be out, given'our ruling on Dr. Luloff as to.what'you' disagree with?
~
7 ) 8- MR. FIERCE:- I don't have'any objection,to ; 9 striking. I'm not sure'if her reference - it's a.true f 10 statement. He filed testimony and we could either say, "And~ _ 11 it was stricken." or -- 12 JUDGE SMITH: ' See,,her understanding of it is not 13 helpful for any determinat, ion of any issue. Her tN 14 understanding really is irrelevant under - it's a matter of-1 . 15 relevancy. 16 MR.' FIERCE: Well, it's.only a matter of relevancy 17 to the extent that the witness wants the Board to know that 18 . she is not' adopting the 84,000 population-figure. 19 At the end of the testimony she puts this in just: l 20 to say, look, I'm net here supporting that number. ' That's
., 21 all she wanted to say. Maybe my saying this now on the ,
22 record does that sufficiently. \. 1 - 23 She is not there saying that that 84,000 number is l 24 the number she supports. . 25 JUDGE SMITH: That's understood as'a disavowal. l Beritage Reporting Corporation (202) 628-4888 -
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_ __._.m_ ____ l*
24406 i l 1 MR. FIERCE: It's a disavowal. 2 JUDGE SMITH: That she is not saying; that 9l 3 somebody else is saying it. l 4 MF. FIERCE: Somebody else has other evidence that
. 5 the numbu< $4 higher, and so she is not there in this 6 testimony just because she mentions the 84,000 population i
7 figure is not meant to support that number. ] 8 I don't want a proposed finding that says, even 9 Mass AG witnesses used the population figure, I guess it's 10 82,000, in the Mass portion. She used it. She is not 11 necessarily supporting it. 12 JUDGE SMITH: I think the statement should be 13 deleted as unnecessary and unsubstantiated. l1 14 Mr. High? 15 HR.' FIERCE: Mr. High. l 16 JUDGE SMITH: Dr. High. t i 17 MR. FIERCE: We have a motion to strike portions l 18 and all of Dr. High's testimony, 19 The first element of complaint is that the 20 calculation used by Dr. High to accomplish what he. believes l 21 would be an appropriate 20 percent calculation, Your Honor. 22 Whatever that means. The 20 percent calculation, as we 23 understood it, meant 20 percent of the peak permanent 24 resident and transient populations, according to the 25 original FEMA guidance memo, maybe not a guidance memo but a Heritage Reporting Corporation
\ (202) 628-4888
24407 (N 1 memorandum of explanation. The Krimm memorandum. Peak
\) 2 resident and transient population.
3 Your Honor had determined, during the course of 4 the New Hampshire proceedings, what the peak of the peaks 5 was. And that was I believe 34,000 - 35,000 vehicles. 6 There was much discussion and testimony and rebuttal . 7 testimony about what an appropriate number to use for ETE 8 purposes would be at those hearings. 9 Particularly, Dr. Urbanik came in and argued that i 10 for ETE purposes, which are used for PAR decision-making 1 11 purposes, you didn't need to have that peak of the peaks. 12 You didn't need to have a fleeting moment. It would be 13 better to have some lesser figure more in the range of 85 [\-- 14 percent. 1 15 And Mr. Lieberman also recommended using a number 1 16 that would be in that range. And you mention those facts in 17 your decision, both Dr. Urbanik and Mr. Lieberman's 18 recommendations using a lower figure than the peak of the 19 peaks would be more appropriate for PAR decision-making 20 purposes. 21 And you find that that number should be 31,000
. 22 vehicles, which is roughly 85 percent of what the peak of 23 the peaks would be.
24 We are now in a different context. We have a 25 situation, interestingly, Your Honor, -- I mean, I find some ] l
\ ") /
x Heritage Reporting Corporation I (202) 628-4888 l
24408 1 irony in this, where on page 5 of the Applicants' motion the 2 Applicants instead of arguing against using the full total 3 beach population that Your Honors had found, the peak of the 4 peaks, argue for something as was done in the ETE argument, 5 something that would be more realistic for more periods of 6 time. - 7 And they say: "The planning basis for emergency 8 response should be based on realistic conditions. Here the 9 reasonable expectable peak is found by the Board not on 10 hypothetical situations." Not hypothetical, Your Honors 11 found 35, 36 as, perhaps, a fleeting moment that that would 12 be the peak of the peaks. 13 Your Honor, I would love to argue reception center 14 monitoring based on some realistic set of conditions and 15 expectations, and not be hamstrung by arguing what we 16 believe is a reckless fiction. The 20 percent number, we 17 think, is outrageous, and you know that. And we are 18 hamstrung here. 19 JUDGE SMITH: We know that you think it. 20 MR. FIERCE: We are hamstrung here. And we are j 21 litigating the 20 percent figure. But by golly, let us ,. 22 litigate 20 percent, not 85 percent of that number. , 1 23 They want to reduce the beach population, Your { l 24 Honor, to 85 percent of what the peak is; and then go with j i 25 the 20 percent on top of that. Heritage Reporting Corporation < (202) 628-4888 . l l l l 1 ______-___ _ ___ _
1 l ' 24409
- 1 Well, if you're going to engage.in a fiction of 20 k 2 percent and not let us get into realistically what_the 3 number would be; then by golly, use 20 percent and hold them 4 to that. They go_beyond that, Your Honor.- They want to.
5 subtract out 50 percent of the beach population in addition. l 6 I've dono the numbers. They want.to take the 85 7 percent of the peak, the reasonable expectable peak, they i 8' want to take 85' percent of that. They then want to take 50 9 percent of that and just throw that out. They are down to 10 42.5 percent then. And then, that's the number they would 11 use to say that 20 percent of that would come. 12 Do you know what that comes to, Your-Honor? It is 13 8.5 percent. They would have you believe that 8.5 percent
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14 of the beach population will show up at monitoring centers.
- 15 I submit to you, that violates the 20 percent )
I 16 rule, and I would move that you strike that testimony. 17 JUDGE SMITH: Say that again? 18 (Laughter) - 19 JUDGE McCOLLOM: '(k) a little slewer so we can
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20 follow the numbers.
., 21 MR. FIERCE: The reasonable expectable peak. )i 22 JUDGE SMITH: Is 85 percent of.the peak.
23 MR. FIERCE: Is 85 percent of the peak of the 24 peaks, roughly. I 25 JUDGE SMITH: Okay. f^ Beritage Reporting Corporation \ (202) 628-4888 i
24410 -
- I 1 MR. FIERCE: In that range. It might be 86 l 2 percent, I don't know. ,
3 They then would have the Board -- in their 4 calculations in Applicants' 17 they throw out 50 percent of 5 that. They say, forget about them. I'll explore this on 6 cross-examination, Your Honor. I don't understand it; it 7 makes no sense to me. They throw it out. 8 JUDGE SMITH: Well, that's not before us, though. 9 MR. FIERCE: That's not before you. 10 But they then would take 42.5 percent, and that's 11 the number they then apply when they have their formula to 12 take 20 percent of that. 13 JUDGE McCOLLOM: Where did the 42.5 percent -- 14 I FIERCE: MR. I'm saying, they take 50 percent of 15 the number they start with. 16 JUDGE McCOLLOM: Okay. 17 MR. FIERCE: Which is already at 85 percent of the 18 peak. 19 JUDGE McCOLLOM: All right. 20 Now then, they take 20 percent. 21 MR. FIERCE: And then they take 20 percent of that , 22 number. 23 JUDGE SMITH: But that's not before us. That's 24 fair game, I would expect. 25 MR. FIERCE: Well, wait a second, Your Honor. Heritage Reporting Corporation (202) 628-4888
'l
_ _ _ _ _ _ _ _ _ _ _ _ _ J
24411 1 We're either going to lit'igate 20 percent or we're
\ 2 not. And if Your Honors don't want'to litigate 20 percent, 3 I'm happy to get into realistic expectations of how many 4 people of the beach population are really going to start 5 showing up. I'm happy to do that.
. 6 But I bet they're going to want to argue their way 7 that the number shouldn't be 20 percent, it should be 8.5 8 percent of the beach population that are going to show up at 9 reception centers. Your Honor, that's outrageous.
10 Now, Colin High wants to use the full 20 percent 11 figure. Start from the top. Let's not cut it'any further; 12 20 percent is bad enough. If we're_ going to litigate 20 13 percent, let us litigate 20 percent and not 85 percent of 14 that. 15 JUDGE SMITH: But the argument.is, as I understand 16 it, that the Board itself did not use the peak of the peak 17 number. 18 MR. FIERCE: For ETE purposes you found it, quote: 19 " good sense." 20 JUDGE SMITH: Right. I know. 21 MR. FIERCE: Based on arguments made to you by Dr. 22 Urbanik. And also, arguments made by Mr. Lieberman. ! .i 23 JUDGE SMITH: Right. j 24 MR. FIERCE: But you didn't doubt for a moment 25 that.that was the peak. 1 i
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24412 , i 1 JUDGE SMITH: I know. I remember what we said. I 2 But isn't the argument made here some place that ( 3 for the purpose of applying the 20 percent that the 4 reasonably expectable peak would be -- i i 5 FR. FIERCE: 20 percent of 85 percent, that's what ? 6 they want to argue, Your Honor. 7 JUDGE SMITH: But what do we say? That's the 8 point. Do I have to look it up? 9 MR. FIERCE: For ETE purposes you said that the 10 31,000 figure, the reasonable expectable peak -- 11 JUDGE SMITH: But didn't we transfer that 31,000 12 to over as the appropriate number to be used for monitoring 13 and decontamination. 14 MR '. FIERCE: No. 15 JUDGE SMITH: We didn't. 16 MR. TROUT: Page 712, Your Honor. 17 MR. FIERCE: Let me point the Board -- 18 JUDGE SMITH: Wait a minute. 19 Let me catch up, because I thought we did and I 20 thought they said we did. And that, I think, is the thrust j 21 of their argument. -
~
22 Page 712. . 23 Where do you make that argument in your motion? 24 MR. TROUT: Page 5, Your Honor, the full paragraph . 25 which begins about halfway down the page. i 4 Heritage Reporting Corporation (202) 628-4888 l 1 1 _ _ _ __f
I
. 24413 1 JUDGE: SMITH: Yes:. Right'.
~
'2- You're going to have to address-that, because-3 that's the important'part'of their argument. RightLor wrongi l 4 that's before.the Appeal Board now.
5 MR. FIERCE: I'm sorry,-Your Honor. 6 (Counsel reviews document.') 7 MR. FIERCE:- .Your Honor, I have looked.at those 8 pages and I, frankly,~do not find that that decision has 9 been made. I do not find'it, on 712, 716'and 724. 10 What I do find on page 798, Your Honor,.where it's 11 in the discussion of this very point where you' decide to go1 12 'with this reasonable expectable peak. 13 It's paragraph 9.106 regarding Dr. Urbanik. And 14 he explained that: "For ETE purposes a reasonable expectableL 15 peak was a better premise."- 16 And you say: "Although this opinion is not purely 17 within his area of expertise as n' traffic engineer, it makes 18 good sense and it is based upon sound experience." i 19 That " good sense" from Dr. Urbanik went'to ETEs, 20 Your Honor.
. .21 JUDGE SMITH: Yes, I know.
,, 22 Now, I'm trying to figure out, did we nevertheless l 23 accept the 31 or whatever it is, thousand figure, for l 24 decontamination monitoring. And Mr. Trout says we did on. 25 page 712 and I'm still looking for it. Beritage Reporting Corporation x (202) 626-4888
- 24414 .
1 MR. TROUT: I'm sorry, Your Honor, I did cite you 2 the wrong page. The actual ruling where the Board 3 incorporated the ETE decision into the monitoring decision 4 is on page 715. It's the first sentence in section 5.69. 5 (Pause) { 6 JUDGE SMITH: I can't find it. 7 MR. TROUT: I'm sorry. The Board says: "SAPL's 8 arguments regarding the determination of the peak population 9 and vehicle counts." 10 JUDGE SMITH: Right. 11 MR. TROUT: Which are the arguments which are 12 detailed on page 712: "Will be addressed in connection with
~
13 the NERERP Revision 2 evacuation time estimates, see section 14 9 infra." 15 And section 9 infra. is where the Board made its 16 ruling about what the reasonably expected peak population 17 is. 18 JUDGE SMITH: Can you point to any language where 19 we expressly or by fair inference can be seen to be saying 20 that you need not apply your 20 percent to the peak of the 21 peaks, but rather to the reasonably expected peak? 22 That's the chain of events I'm looking for here,
~
l 23 if it's there. - j 24 MR. TROUT: All right. 25 I think, Your Honor, you have to do it l Heritage Reporting Corporation l k (202) 628-4888 . 'I I i i
24415 1 inferentially. I would agree that there is no expressed 2 ruling saying that you used the reasonably expected as 3 opposed to the peak of the peaks. 4 The way you would make your chain of inference 5 would be as follows: you have the challenge. You have the i
. 6 Board's cross reference to the ETE.
7 JUDGE SMITH: Right. I l 8 MR. TROUT: Testimony -- the ETE ruling. You have 9 in the ETE ruling the distinction drawn between reasonably 10 expected peak, 31,000, and the peak of the peaks which the 11 Board said very conservatively, that is to say over-
\
12 generously, would be 35,000. j 13 So you have these two numbers; which one is the
- 14 Board applying. You go back.to the monitoring discussion 15 and the Board finds the monitoring capacity adequate.
16 JUDGE SMITH: Yes. Right. 17 MR. TROUT: But if the. Board had applied the 18 35,000 number, I presume we would have busted on the 19 monitoring capacity. l 20 JUDGE SMITH: Yes, ,
- 21 I'm trying to trace that through to see if that's )
. 22 the case. Because I just have a memory of applying the peak 23 rather than the peak of'the peak to the calculations. But ; 24 I'm at loss right now. . 25 MR. TURK: Your Honor, if I can add something, ! Heritage Reporting Corporation t& (202) 628-4888 .
. 1 i
24416 1 this again is on recollection of distant events. 2 In your decision you have a table that lays odt 3 how many people may be expected to arrive at each of the 4 four reception centers. 5 JUDGE SMITH: That table has been argued. 6 All right. 7 MR. TURK: If my recollection is correct, that was 8 based upon the Applicants' testimony as to their planning 9 basis, as to how many registrars they need to put at the 10 reception centers. 11 And again, if my memory is correct, that was not 12 at peak of the peaks, the 35,000 number. That was a lower 13 number that was in their testimony. 14 JUDGE SMITH: Your argument depends very much upon l 15 res judicata here. And I think that you're going to have to 16 take us by the hand, if you want to prevail on it, and lead 17 us exactly to the figures that we used. And so far you l 18 haven't done it. 19 ; 20 ' i l 21 ..' 22 .. 23 24 , 25 Heritage Reporting Corporation (202) 628-4888
4 24417 1 JUDGE SMITH: (Continued)- That's' not to say the 2 reasonably expected peak should not be the correct one. The 3 issue now that we're addressing is very narrow, and that is, 4 is-that the one we used in the matter that is no longer-5- before us. 6 (Pause . ) 7 JUDGE SMITH: Page 703. 8 MR. TROUT: Your Honor, I would suggest that gn 9 703 and 704 the Board lays out, first of all, establishes 10 the formula for calculating:the 20 percent, which is not in 11 dispute. Then makes reference to the numbers which the 12 Applicants use in calculating -- in crunching the actual 13 numbers, running them through the formula. 14 The Board itself runs the numbers through the [ ,
\.
15 formula and then it proceeds to break that down by the 16 number of registrars over 704, 705, I mean, clearly the 17 Board there is just repeating what the Applicants do, the 1B calculations the Applicants do, and it's redoing it itself. 19 But I would suggest that it is that calculation 20 which the Board's overall finding at 724 embraces.
. 21 JUDGE SMITH: Well, it seems to me in 520 and 521,
,. 22 not having the citation available, that's pretty much what 23 we were doing. 24 MR. FIERCE: Your Honor. 25 JUDGE SMITH: I mean that's finding 520 and 521. l l Heritage Reporting Corporation (202) 628-4888
24418 - 1 MR. FIERCE: I believe Your Honors used the 2 Applicants' and the State of New Hampshire's numbers. Those 3 numbers did not anticipate the Board's ruling that the beach - 4 population would be higher than they expected. In fact, up 5 to 31,000. Those calculations are based on even lower 6 numbers -- 7 JUDGE SMITH: Lower numbers. 8 MR. FIERCE: -- than the 31,000. 9 JUDGE SMITH: All right, maybe we are wrong. You . 10 know, but the point is -- l 11 MR. FIERCE: Well, the point is that it hasn't 12 been decided. I think Your Honors didn't consciously decide 13 this issue with respect to what the proper numbers should 14 be. 15 JUDGE SMITH: Are you suggesting we used the 16 numbers that even Applicants later on disavowed because they 17 didn't pursue anymore? j I 18 MR. FIERCE: I don't know whether they have > 19 disavowed, but they certainly should disavow the earlier 20 numbers. 21 JUDGE SMITH: Well, we found in the ETEs that some l 22 numbers were no longer advanced by Applicants, and that they 1 23 had, although they hadn't disavowed the lower numbers, they - 24 had embraced higher numbers at the actual hearing. 25 See, the point is not whether we are right or Heritage Reporting Corporation (202) 628-4888 l
24419
- 1 wrong. ,The point is, is it on appeal; is it beyond our
's_,- 2 jurisdiction, the issue. .
3 MR. FIERCE: Your Honor, in putting our heads 4 together, and I believe it's our recollection that on the 5 challenge that was made to the reception centers in New 6 Hampshire, there was not a specific challenge made that the 7 beach population was going to be much higher than was 8 expected, and therefore the monitoring numbers were 9 calculated to be too low. 10 The basic thrust that primarily SAPL had made on 11 those issues was that there would be many, many more people 12 coming to reception centers. And they had Dr. Herzberg, 13 which was the specific piece of testimony on which Your rs 14 Honor may recollect on that. {
\- 15 JUDGE SMITH: So you are saying the population 16 number was not a material part of our consideration. It was 17 the supposition of the 20 or not 20 percent.
18 MR. FIERCE: Yes. And that -- 19 JUDGE SMITH: The 20 percent was important. 20 MR. FIERCE: And to take it back into the basic
., 21 structure of an issue preclusion argument, I have an extra 22 arrow here, becau:e I would argue that this one, with 23 respect to monitoring centers for New Hampshire, wasn't even 24 litigated. It wasn't even litigated. It wasn't decided.
25 And it wasn't necessary. p-s
- Heritage Reporting Corporation j \s_, (202) 628-4888
24420 . i The population amounts -- '
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1 , JUDGE SMITH: ) 2 MR. FIERCE :- Yes. 3 JUDGE SMITH: -- were not litigated as to 4 monitoring. q 5 MR. TROUT: Your Honor -- i 6 JUDGE SMITH: Gee, I just have such a memory of 7 wondering about those populations at the -- 8 HR. TROUT: In the Board's decision at page .712, ; 9 Section 5.61, the Board spells out at length that SAPL, as 10 an argument, has accepted the 20 percent. And then said, i 11 even if you take 20 percent, the beach numbers are too high. 12 And they' introduced their own testimony, the Fallon Panel. 13 They made reference to the testimony of this witness, High, 14 as to Mass AG's assertion that there are really 38,000 cars ; 15 on the beach. 16 JUDGE SMITH: Well, I see 5.61 seems to get into 17 that. l 18 MR. TROUT: And that's the argument that the Board l
\
19 referred over on 5.69. 20 JUDGE SMITH: 5.69. I don't think we have any l
~
21 choice but just to sit down and read the whole thing in its ,
.-)
22 continuity. This is going to take some time. l . 23 MR. FIERCE: Your Honor, can I refer you to 5.667
- i 24 JUDGE SMITH: Well, I think I would like to read 25 from where I am at 5.61, all the way through to there. !
l l l Beritage Reporting Corporation , l (202) 628-4888 l l i
L. 24421
, il MR. FIERCE: ~ Okay. ; -2:
(Board reads. document.)- 7
- 3. JUDGE. SMITH: ' Mr._ Fierce,'on page 705.and Finding 4 5.25, Dr.; Cole suggests;that'we actuallyfdid find'the 5 anticipated numbersiand'they add up.to'about'31,500, which 6 ;would be exactly.the' number.that we found to be thec-- is 7~ that a parallel consideration?
8 'Do they' match? 9 MR.. FIERCE: Which' numbers are..you looking at,- 10 Your Honor?- 11' JUDGE SMITH: ' Look'on page 705 of thefprinted , 12 decision. 13 MR. FIERCE: Yes. ,
. . I 14 JUDGE SMITH: Finding 5.25.
f . L\+ 15 JUDGE COLE: The summary of the projected arrivals 16 at the four reception centers. 17 MR. FIERCE: 5.25. l 18 The number of registrars'needed,'is that - - 19 JUDGE COLE: No,'no. Under'thaticolumn, yes. l 20 JUDGE McCOLLOM: Look at-the table at the top.of l l ., 21 that page, and there are four different lines for'the four 22 different reception ~ centers. And according to that-formula,. 1*, l 23 the first< number is projected arrivals at each center.
~
24 MR. PIERCE: yes. 25 JUDGE McCOLLOM: And you add those four'first' i.. , Beritage Raporting Corporation i . . (202) 628-4888 w.__________._._-. - .- .-
j i
. I 24422 .
1 numbers up, and that comes to around 31,500. 1 2 MR. FIERCE: I may be confused here, Your Honor. 3 I thought that number was the total number of expected i 4 arrivals from the entire New Hampshire EPZ, not just the j l 5 beach area. l 6 JUDGE SMITH: What do you say to r. hat, Mr. Trout? 7 That seems to be the case, isn't it? 8 MR. TROUT:' I think Mr. Fierce is right, Your j I; 9 Honor. . f 10 JUDGE SMITH: Yes. l 11 MR. FIERCE: And that with respect to the 31,0,00 i i l 12 figure -- l 13 JUDGE SMITH: It's a coincidence. 14 MR'. FIERCE: Yes. 15 JUDGE SMITH: Yes. I 16 MR. FIERCE: The 31,000 figuro that Your Honor is 17 familiar with is again a total beach population, not a New 18 Hampshire beach population number. So only some of the j l 19 31,000 would be included in any New Hampshire monitoring 20 totals. ' 21 JUDGE SMITH: Well,.so far in reading, I have not 22 been.able to find any clear indication that we made a 23 decision based upon a beach population of arriving or using - 24 31,0d0, or about that number, of automobiles. I think the 25 decision is silent.
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i 24423~ q
- 1 l~ MR. FIERCE: Your Honor. ]
I As far as I.can see right now.
\_- E JUDGE SMITH:
3 ' MR . FIERCE: I do want to note on'page'716, in 4 paragraph 5.70 a -- 5 JUDGE SMITH: As.a matter of fact -- excuse me. 6 Reconstructing what happened is that:we weren't f 7 going.to redo the whole litigation'on the beaches _again.- 8 And with respect to the decontamination centers, we are l 9 going to say whatever we decided in the ETEs is what is l 10 going to be our decision with respect to' SAPL's allegation. 11 And, indeed, we did particularly find that we are 12 dealing with their beach numbers in that section of the 13 decision. But we never went back at any point that I have
~ /"N 14 been able to trace and expressly and clearly said for 15 monitoring decontamination purposes you take the reasonably 16 expected peak and not the peak of the. peak. .
I 17 Although we probably should have, I don't see l 18 where we have done it. And to this moment, no one has led - y i 19 us inferentially that maybe we'should have done it, but 20 nobody has led us to the numbers or any method of
., 21 ca'lculation which shows we did do it. . And I'm still open 22 for that, but I just can't find it.
23 I have no independent memory. It just seemed to ] 24 me that we were looking at the reasonably expected peak, but 25 I have no independent memory of making that distinction and Heritage Reporting Corporation O- (202) 628-4888 ; l _ _ _ .____._..______._________w
24424 , 1 I can't find it in the decision here that we wrote. 2 I mean I can't find any place where we stated in 3 so many words reliably or to be reliably inferred that don't 4 take the peak of the peaks for this purpose. Take the 5 reasonably expected peak. 6 MR. TROUT: Your Honor. 7 JUDGE SMITH: And, of course, to take the 8 reasonably expected peak, the summertime peak for monitoring 9 stations -- well, never mind that. That, I think, was 10 appropriate. 11 So as a matter of res judicata, I think one thing 12 we learned from the papers and the arguments this morning 13 that before you can sustain your burden of establishing res 14 judicata, it's got to be clear that we decided it and that 15 it was necessary. And I still don't follow through. 16 MR. TROUT: Your Honor, I'm looking at 5.20 of the 17 partial initial decision which is on the bottom of page 703 18 where the Board notes the Applicants are using their -- 19 basically, they are using their ETE numbers, the 29,300. 20 JUDGE SMITH: Yes. 21 MR. TROUT: And it would appear that, in paragraph 'I 22 5.25, the calculations Your Honor averted to just a moment , 23 ago, it is those numbers which are carried through. 24 Now, there is a wrinkle on that and I must concede 25 there is a wrinkle on that because that would leave out the l l Heritage Reporting Corporation (202) 628-4888 G l l
24425 H
. 'l So.it's 1 1 1500 that Dr. Urbanik^added to.get.to the 31,000.
'\ms 2 not clean. It's not a clean res judicata argument. _
3 But I think to the extent that it's possible to 4 track what numbers for beach population 1 the Board used in-5 its calculation, I think.that's probably as close as we are j s I 6 going to come. ] 7 (Pause. ) l 8 9 - 10 1 11 . 12 13 14 15 16 , i i 17 - 1 J 18 19 20
., 21 22 23 24 !
i 25 ]
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k 24426 l 1 1 JUDGE SMITH: You disavow your agreement with Mr. I ' 2 Fierce? . 3 MR. TROUT: Oh, no, Your Honor, my agreement with l 1 4 Mr. Fierce was that those numbers adding up to 31,500 was a 5 coincidence, because as Mr. Fierce pointed out c'orrectly, ) 6 those numbers are permanent population and transient 7 population. . 1 8 And, of course, you don't get all 31,000 -- 9' JUDGE SMITH: It just slipped off 4 10 MR. TROUT: Yes. 11 JUDGE SMITH: That's right. 12 So again, it is a coincidence. Those numbers are - 13 coincidental. 14 MR. TROUT: The fact that they add up to 31,500 is 15 a coincidence, Your Honor. Those numbers incorporate some - 16 - those numbers clearly incorporate some beach vehicle 17 assumption. Some beach vehic~1e calculation. l 18 And as far as I am able to trace, Your Honor, that 19 would be the number in 5.20. 20 (The Board confers.) 21 JUDGE SMITH: We cannot identify the basis for the .- l 22 beach vehicles in the monitoring decontamination. There is , 'l 23 no decision which renders this aspect of it res judicata 24 that we can find. 25 So on that aspect of it you don't prevail; you Heritage Reporting Corporation , (202) 628-4888 l \ i l l
24427 1 lose. That's separate and aside from what should be the 2 correct numbers. It's just that we have not decided based 3 upon the reasonably expected peak or the peak of the peaks. 4 JUDGE SMITH: Yes. 5 MR. FIEBCE: Your Honor, the next aspect of the 6 motion is the Luloff population data. ' 7 MR. TROUT: Well, actually, no. We now have to 8 decide which standard is a mat.ter of law, the one the Board 9 should apply. 10 MR. FIERCE: It seems like that's an open issue 11 for us to litigate here. 12 JUDGE SMITH: What is it now? , 13 MR. TROUT: The question is really, I think, Your 14, Honor, a question of law. Which input is the proper input? 15 Is it the peak of the peaks or is it the reasonably 16 expectable peak? , 17 JUDGE SMITH: Right. 18 MR. TROUT: And the Applicants argue in their 19 motion -- 20 JUDGE SMITH: Oh, I see what you're saying. l 1 21 All right. Is a question of law and can be 22 decided without further evidence. 23 16. TROUT: That's correct, Your Honor. 24 ' JUDGE SMITH: I see. i 25 MR. FIERCE: Well, I don't see that as part of the Ecritage Reporting Corporation (202) 628-4888
l 24428 -
- b 1 motion here, Your Honor. 1 2 Yes. If they want to bring a motion for summary 3 disposition, I would like sometime to argue that, Your 4 Honor.
5 . MR . TROUT: It's all of page 4 and the first half 6 of page 5 of the motion, which is the proper standard. 7 MR. FIERCE: Well, we're arguing a motion in 8 limine. I would like.to argue that motion sometime. I don't 9 see it before us. 10 MR. TROUT: Your Honor, page 4 of the motion at 11 the very bottom. "In spite of the Board's skepticism about 12 a beach vehicle count of 35,000 or higher, and despite the 13 clear ruling that 31,000 is the reasonably expectable peak 14 occupancy, the witness uses 35,500 beach vehicles for his 15 transient population input. 16 This use of the chimerical, which I have probably l l 17 mispronounced it, peak of the peaks as a planning basis for 18 radiological monitoring capacity is inappropriate as a 19 matter of law. The planning basis for emergency response 20 should be based upon realistic conditions." q l 1 l 21 MR. FIERCE: I agree. ,; 22 MR. TROUT: This is a passage that Mr. Fierce -- 23 MR. FIERCE: Let's throw out the 20 percent and go 24 to realism. Let's do it, Jeffrey, I stipulate to that. l 25 JUDGE SMITH: Hey, hey, hey, wait, wait. Relax i Heritage Reporting Corporation (202) 628-4888
24429 1 now.
/
\ 2 Mr. Fierce, now with' respect to 20 percent, it's 3 not going to do you any good to argue that. As we ruled i
4 before -- - l 5 MR.: FIERCE: 'If he wants to stipulate to'it, Your-6 Honor, we might get some place. I don't think he will. 7 JUDGE SMITH: It's.gone. You have appealed it. 8 It's gone. It's on its way. It is not here anymore. 9 MR. FIERCE: Let's admit.we are not talking s 10 realism here then; we're talking 20 percent. We're not 11, talking realism. It's an arbitrary number, it's 20 percent. 12 Now, they want to argue, Your Ho.nor, that for 13 site-specific reasons for Seabrook something less than the
~'
14 full 20 percent of the peak should be used. The site-15 specific reason is that the peak is really kind of, for 16 Seabrook, k,ind of a number that's chimerical. It comes and 17 it goes. It's a fleeting moment. 18 Your Honor, that is arguing site-specific reasons 19 why you should move from the 20 percent. They want to move 20 it down. I will give you dozens of reasons why I would like 21 to argue for site-specific reasons that from the 20 percent 22 figure we should move up. 23 I think you're stuck at 20 percent and it's.35,000 24 or 36,000. 25 JUDGE SMITH: Mr. Fierce, 20 percent . standing
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- 1 alone doesn't mean anything unless you apply it to another 2 number; right? ,
3 MR. FIERCE: To the peak. 4 JUDGE SMITH: It's the other number that we're 5 talking about, so don't keep arguing the 20 percent. 6 MR. FIERCE: It's 20 percent of the peak. Your 7 Honors have stated that repeatedly. It's in your decision. 8 That's the paragraph I was trying to refer you to, at 7. -- 9 JUDGE SMITH: Now we' re going back ta) that. You 10 just prevailed that we had not decided. Now we're going 11 back to these numbers? 12 MR. FIERCE: No. I just wanted to point out what 13 you said the standard was. The standard here as you 14 articulated it was 20 percent of the peak. 15 JUDGE SMITH: Okay. 16 , And what did we define as the peak? 17 MR. FIERCE: First, 20 percent of the standard -- l l 18 strike that. l l 19 JUDGE McCOLLOM: Where are you reading, Mr. j 20 Fierce? 21 MR. FIERCE: 5.70 on page 716. ,. 22 JUDGE SMITH: If you want to stick by those
~
*i 23 labels, then you're going to lose.
24 MS. DOUGHTY: Your Honor. 25 JUDGE SMITH: We'll go back to where we were. We 1 l Heritage Reporting Corporation , I (202) 628-4888 * ' l l
3 i
. ^b 24431 I l
. 1
.,f-ss 1 -reopened the res judicata. ]
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\_s 2 MR. FIERCE: Al1 we can say is,' we're starting 3 from an argument based on a FEMA memorandum that says: "20 4 percent of'the peak ~ resident and transient population." +
5 JUDGE SMITH: Mr. Fierce, if you are going to 6 ' continue to argue the 20 percent in the FEMA memorandum, we 1 7 might as well just break and forget it. 8 MR. FIERCE: -No. No. 9 JUDGE SMITH: What you have.to argue now is: do we 10 have to apply the 20 percent to what we said was an allusive 11 peak of the peak or to a reasonably expected peak. 12 MR. FIERCE: I'm prepared to make my argument, 1 13 Your Honor. I'm still wondering where.we are here. 14 JUDGE SMITH: I'm telling you where we are. Just 15 forget 20 percent for a moment. 16 . MR. FIERCE: I am forgetting that. 17 JUDGE SMITH: And the point'is, to which is it 18 applied, and as a matter of law, must we apply it to the l 19 reasonably expected peak to be expected on most hot summer { l y 20 days, weekends, or the peak of the peak which we noted had l
., 21 never been counted or anything but we believe that might ,
22 exist at an allusiv'e time, at 2 o' clock, at allusive times, 23 peak of the peak. 24 Now that's the question, as a matter of law. Does 1 25 it have to be applied to what we believe to be a relatively i L ! l Heritage Reporting Corporation l
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-j
s 24432 1 allusive, perhaps anomalous situation, or to the ordinary; 2 that's the argument before us right now. Now what does it 3 have to be applied to? 4 And is that a factual issue or is it a legal 5 issue? 6 MR. FIERCE: Your Honor, you have turned what I 7 thought was a legal issue into a factual one. The legal 8 issue and the legal standard is peak. And I believe Your l 9 Honors have determined that in the New Hampshire decision. l 10 These are now site-specific reasons for Seabrook, 11 why something less than peak, 35,000, 36,000, a reasonable 12 expectable peak ought to be used for Seabrook, moving down 13 to that 85 percent factor. 14 And they're going to give you site-specific 15 reasons about the length of time that for Seabrook the peak 16 population exists. Site-specific reasons. l 17 I don't think that's the way the 20 percent rule, 18 as you've determined it, should be applied, allowing in 19 evidence of site-specific reasons whether we're going to 20 move up or down from 20 percent. 21 If you're going to let them make that argument, .. 22 I'll make some arguments to you why it should be higher than
. 3 23 that.
]
24 JUDGE SMITH: Higher than what? 25 MR. FIERCE: Than 35 or 36,000. 20 percent of 35 l 1 l Heritage Reporting Corporation (202) 628-4888 i
24433)
~s 1 or 36,000, sit should be a greater percentage; 2' JUDGE SMITH: You're stuck ~on 20 percent.- You 3 can't.get away.from 20 percent, can you?:
4 MR.. FIERCE: I-am stuck with 20 percent,1Your I have to have a formula thatiuses that number in-5 Honor. 4 6- 'it. I
'7 I-also want to point out, as Ms. Doughty was just 8 reminding me,.there really is a fundamental difference 9 -between emergency planning for reception centers and 10 emergency planning for ETEs and protective; action decision-11 making.
12 - As you noted in your decision, you' thought the 13- 31,000 vehicles was a more appropriate numberLto use in'an 14 ETE table. 15 You also noted that the higher number was there,
~
16 available for the State of New Hampshire if they wanted.to-17 use it. And, in fact, emergency planners at the time of an 18 emergency might recognize that they had a boom-buster day 19 out there and might use that knowledge to up'their:ETEs. 20 In_ fact,swe have a contention that says they ought
., 21 to use some very time-specific,,real-time data to do that.
22 So the adjustment can be made at the' time of an-23 emergency, Your Honor, to. account for a larger population. 4 24 Here we have reception centers that are fixed'aites with a 1 25 fixed. number of monitoring stations and a: fixed staff. So l Heritage Reporting Corporation (202) 628-4888 i
R I
~
24434 1 to the extent that the population that might show up at a
. 2 reception center exceeds the 20 percent figure or the number 3 that's anticipated, they will likely not be able to be 4 monitored within a 12-hour period and that has some serious 5 consequences he're.
6 JUDGE SMITH: I don't think that the Board is 7 getting any guidance this morning on the legal principle 8 other than the citations that Mr. Trout has made. And we l 9 don't have those available to us here. And I don't know 1 10 what to do. I don't think we can decide what the legal 11 standard is this morning, at least I can't. 12 - You're not being helpful. You're just arguing 13 again the way you like things to be. 14 MS. DOUGHTY: Your Honor, I would just like to say 15 that I think the Board appropriately applied a reasonably 16 expectable peak in ETEs because there's a downside risk. If
- 17 you overestimate and use the peak of the peak on a day when 18 that is not actually there out, there could be an adverse 19 effect on public health and safety because you will have 20 overestimated the ETEs and it will have been inappropriately 21 factored into your decision-making. .-
22 JUDGE SMITH: That's a very good point. , 23 MS. DOUGHTY: Whereas, with reception centers, if l 24 you are always prepared for the peak of the peak estimate, 25 at the 20 percent level, -- I l (202) 628-4888 1 i i
. i l
- 24435-
[ 1 JUDGE SMITH: You're not going to be led into a 2 wrong decision. 3 MS. DOUGHTY: 'Right. 4 I think that's a. fundamental difference. 5 JUDGE SMITH: It's a good point. 6 Nevertheless, we still have to resolve as to what i 7 is required as a-matter of law for planning of this nature. 8 I'ta not able to do it sitting here right now. I have.to go 9 hit the law books. As a matter of principle we don't do 10 that. 11 MR. FIERCE: Your Honor. 12 MR. TURK: Your Honor, may I add a few thoughts, 13 Your Honor, before we leave the issue. 14 I'm getting the sense that you're not going to
\
15 rule now. 16 JUDGE SMITH: I don't know how to rule on the 17 matter of law. 18 MR. TURK: May I add a few' thoughts for your I 19 consideration, also, though? 20 JUDGE SMITH: Yes.
- 21 MR. TURK: First, I'm looking at the testimony of 22 Dr. High and I see it's tied into JI-56, monitoring rate. I
..' I 23 look at Contention JI-56 and there's nothing in there about 24 . what the proper number of evacuees to plan for should be.
. . 1 25 It's not in the contention. It's not properly an issue !
1 I Beritage Reporting Corporation (202) 628-4888 ; 1 i _ _ _ _ _ _ _ _ . - i
i i
. l 24436 1 before you.
2 JUDGE SMITH: That's very good. 3 MR. TURK: That's my first point. 4 JUDGE SMITH: I'm glad you came up here and 5 finally whipped things into shape. 6 (Laughter) 7 8 9 10 l 11 12 13 14 , 15 1 16 17 l 18 19 20 21 . 22
- 23 i
. 24 25 l
9! Heritage Reporting Corporation (202) 628-4888 ! l l l
'24437 1- - JUDGE SMITH: You've got'your unruly staff under 2 control .-
3 (Laughter)
~
4 MR.. TURK: Well, that's one factor that we should:
-{
be aware of'when you mak'e a ruling.
~
U It may belthat you 5 6 don't need to make a ruling because the' issue is not 7' properly before you. 8 JUDGE SMITH: That wasn't argued in the motion. I-o 9.- suppose it's always timely. But you have to give.Mr.. Fierce . 10 an opportunity to address it. 11 MR. TURK: Well, I certainly-wouldn't keep him-12- from doing that. 13 JUDGE SMITH: And I expect.that you'aren't' 14 prepared to address that right.now, are~you? 15 - MR. FIERCE:- Well,.I would like to.see a st) tion on 16 it or something. 17 MR. TURK: Well, consider it a motion.- Consider 18 it a motion to strike. 19 MR. FIERCE: I am familiar with what the 20 contention says and how it's --
. 21, JUDGE SMITH:- Do you want us to_get out the 22 contention book and start wading'through it now, or do you:
23 want some time on it? 24 MR. FIERCE: I'm familiar with the contention.
'i 25 It's not going to take me'--
# Beritage. Reporting Corporation (202) 628-4888 ;
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24438 - 1 JUDGE SMITH: Okay, it's your call. It's your 2 call. 3 Get out the contention and start working on it. 4 MR. TURK: Your Honor, may I add to my point 5 before we turn from that? 6 In terms of what is the proper legal basis for 7 planning, the regulatory guidance on the issue is J-12.in 8 NUREG-0654. And that provides that the Applicants or state 9 must plan for the evacuees arriving within 12 hours. . 10 There is no standard set there as to which maximum 11 peak you should consider. But I think it has to be 12 considered in light of what is reasonably expected. That's
~
13 always been the way. 14 JUDGE SMITH: That's the whole concept behind 20 l 1 15 percent rather than 100 percent. 16 MR. TURK: That's true.- And that's the whole 17 point. 18 JUDGE SMITH: Yes, I know. That's the legal 19 aspect that I was thinking of. But his argument has some 20 merit. And that is, you apply something less than whole and 21 multiply it to something less than whole. And you do that
.-\
22 enough times, then you no longer have " reasonably expected." 23 And that's the thing that -- 24 MR. TURK: I fall off the hay ride wagon in that, ! l 25 Your Honor. I don't see that the Applicants have been I i Heritage Reporting Corporation ; ! (202) 628-4888 i l l l l l
24439. 1: basing it'on an unrealistic number. '[' t
\ 2' In the first instance, I think that the peak of-3 the peaks number is unrealistic.- There has never.been that' 4 large a number of vehicles observed in the beach areas. As 5 your decision pointed out, nothing m' ore than 27,000 vehicles 6 has ever been observed by Interveners or Applicants.
7 You already were gracious enough to include that 8 number on the basis of several hypothetical assumptions such 9 as, well, we'll extend the time out to 2:00 p.m. to get the 10 maximum crowd. 11 We will take into consideration vehicles that we 12 can't see, 2,000 vehicles hidden from the view of the-13 camera. And we will take into consideration the vehicles in 14 transit and add that to'the numbers of cars that are already 15 parked. So you already have elevated this to a fairly high .j j 16 number that itself can -- 17 JUDGE SMITH: That's right. 18 MR. TURK: -- be argued to be beyond what may 19 realistically be predicted. 20 The peak of the p*=ka nnmbar w=* =ipply something
. 21 that you could say, all right, if we are goibc' to 22 hypothesize -- l 1
23 JUDGE SMITH: If it ever happens, if it ever
- i 24 should happen, this is what you've got. -
25 MR. TURK: And we are going to hypothesize an I [ * ( Beritage Reporting Corporation (202) 628-4888 . i i i
24440 I accident occurring at the absolute peak summer crowd on the 2 hottest possible day with the largest number of people at 3 exactly that moment in time, at 2:00 p.m. Not 2:10, because 4 then the peak will already have diminished because people 5 already have started leaving the area. 6 That number by itself is very unrealistic, and 7 that should not be the proper planning basis. It should be 8 the maximum reasonably expected population, which is your 9 31,000 number. l 10 JUDGE SMITH: Twenty percent of that. 11 MR. TURK: Twenty percent of that. 12 Let me add one other thought, if I may. 13 As I recall, the numbers addressed in your partial i . 14 initial decision, which added up to about 32,500, those are 15 the numbers in that table that Dr. Cole referred to. That 16 reflected the number of vehicles arriving from New Hampshire 17 beaches and New Hampshire portions of the EPZ. It did not
'18 include the Salisbury Beach and other areas.
19 So when you consider your partial initial 20 decision, that is only the New Hampshire cars. Ir. contrast, 21 the 31,000 vehicie reasonably expected peak.was for all area , 22 beaches, including Salisbury Beach. So it is an apples and 23 orange comparison. 24 MR. FIERCE: Your Honor, rather than pulling out 25 the contention, this is a contention that has been through a Heritage Reporting Corporation (202) 628-4888 l l w__________ _
24441 1 number of drafts, corrections, portions have been stricken. 2 And the most crucial part was that on January 26, 1988, 3 there was a telephone conference call, and I don't have that 4 transcript here, in which Your Honor determined that the 5 monitoring rate portion of this testimony was in. 1 don't 6 have that,, .and without that transcript I'm not prepared to 7 argue. 8 I would like to see a written motion. If there is 9 a motion to strike a contention now,- I would rather not do 10 it orally without something in writing and having reference 11 back to that -- 12 MR. TROUT: He's not arguing to strike the 13 contention. He's arguing that.the testimony is ,beyond the 14 scope of the admitted contention. I 15 MR. TURK:. And, Your Honor, let me note. I have 16 been doing a lot of writing lately. I am not going to 17 undertake to write a brief unless Your Honor requests it. l ' 18 JUDGE SMITH: No, no. ; l 19 MR. TURK: I'm making an oral motion that the ] 20 testimony is beyond the scope and should be stricken.
+
. 21 JUDGE SMITH: No, we don't accept briefs anymore 22 except under emergency circumstances. )
l 23 (Laughter) i 24 MR. FIERCE: I make the same motion, Your Honor, 25 with respect to the Applicants' testimony that addresses C Heritage Reporting Corporation ( . (202) 628-4888 _m.._-_____._____m_m -mm.m_i
24442 1 these issues then. 2 MR. TURK: Fine. 3 JUDGE SMITH: What is it that you are requesting 4 now? - 5 MR. FIERCE: Well, I want some time to go back and 6 review -- 7 JUDGE SMITH: Yes, you are exactly entitled to - 1 l 8 that. But the thing that's troubling me is that the 9 argument was made that the contention, as I understand the ) l 10 argument, the contention questions the monitoring rate, but .j 11 not the population to be monitored. ] l l l 12 MR. TRAFICONTE: Your Honor, I was -- ] 13 JUDGE SMITH: Is that correct? I l
' i 14 MR. TRAFICONTE: Your Honor, I was on the 15 telephone conference and Mr. Fierce was not. . And we don't 16 have with us down here, although we can get by the end of 17 the day --
18 MR. DIGNAN: Here you have it. Courtesy of Ms. l 19 Wardlow, by the way. 20 (Document proffered to counsel) 21 MR. TRAFICONTE: I just want to review it, because .- 22 I recall we had a discussion of the scope of this ,; 23 contention. I 24 (Pause to review document.) 25 JUDGE SMITH: Perhaps it would be helpful if we Heritage Reporting Corporation , (202) 628-4888
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~
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24443
-~x, 1 took an earlier lunch break today. \- ~ 2 Is there anything else? This is the final motion 3 we have to 1.1ke under advisement before the Staff's 4 testimony, right?
5 MS. CHAN: I believe Mr. Goble's redirect. 6 JUDGE SMITH: Oh, yes, right. I forgot that. We 7 still have him. l 8 (P ause . ) - 1 1 9 MR. FIERCE: There may be other aspects to the. 10 High motion. J l 11 JUDGE SMITH: Oh, all right, good. ) l 12 Yes, vehicle occupancy rate is something that has { l 13 to be argued, too, isn't it? l [^'N 14 MR. FIERCE: Would Your Honors want us to go ahead l j
\ -
I 15 and argue the rest of the motion now and then take the lunch 16 break? 17 JUDGE SMITH: Yes, I think that would be i 18 appropriate, and then will come back to the other previous l 19 point after lunch. 20 MR. FIERCE: There is a question raised in the
., 21 motion in limine regarding the number of persons per vehicle 22 expected to -- when the vehicles arrive from the beach areas 23 to the monitoring trailers, the number of people per 24 vehicle. And the witness does argue that the vehicle 25 occupancy rate should be higher than 2.4.
r~N I ) Heritage Reporting Corporation
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(202) 628-4888
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24444 1 The argument here is similar, but a little bit 2 different from the Luloff res judicata argument. Again, 3 this is an issue preclusion, not claim preclusions. The 4 standards that Your Honors articulated in the Weinhold 5 position, which I believe are the standard issue preclusion, 6 standards have to be met. 7 Remember back to the ETE testimony, if you will, 8 in New Hampshire. There was a footnote in a Dr. Adler piece 9 of testimony which caused the Applicants some consternation 10 and the Board questioned why Dr. Adler was pushing a number, 11 I believe it was something like 2.85 or 2.854, as a beach 12 occupancy / vehicle occupancy rate in the beach areas based on 13 his calculations from data from the Luloff survey. 14 And ultimately what happened is Your Honors 15 recognized that it was in a footnote because the vehicle 16 occupancy rates were not relevant to ETE testimony. It was 17 not an issue. The question is vehicles: how many vehicles 18 and the rate that they can flow out of the EPZ, not how many 19 people are in the car. 20 So, clearly it was not a material issue that was l 21 relevant to the ETE decisions Your Honors had made, and it .- l 22 wasn't decided as part of the ETE case that Your Honors had ,1
*I 23 made. And I do not see that the issue of 2.4 versus 2.854 !
i 24 was decided anywhere else in your New Hampshire PID. j i 25 So I believe that we have got that lack of -- ), l
. Heritage Reporting Corporation (202) 628-4888 Ol !
l 24445 g-~ 1 there is a lack here that they have not met the standards . j' 2 for issue preclusion with respect to vehicle occupancy rate 3 arriving at the monitoring centers. 4 - I believe Your Honors, with respect to the 5 occupancy rate numbers used in the New Hampshire, just 6 adopted the 2.4 figure that the Applicants had presented in 7 their testimony in the State of New Hampshire, but that that 8 was not directly challenged at that level. 9 JUDGE SMITH: Where did the 2.6 we used in the 10 decision derive? 11 MR. FIERCE: 2.6 is -- - 12 MR. TROUT: For permanent. residents, Your Honor. 13' MR. FIERCE: -- the number for permanent 14 residents, yes. ., 15 MR. TROUT: Ahd that's the number that Mass AG 16 argued in New Hampshire should be 2.3. 17 JUDGE SMITH: Yes. 18 MR. TROUT: Yes, there are two different vehicle 19 occupancy rates, Your Honor, for permanent residents and for 20 beach transients. , l ., 21 JUDGE SMITH: Yes. l 22 MR. TROUT: The Applicants' numbers were 2.4 for
. j 23 the beach transients and 2.6 for the permanent. residents.
24 And the New Hampshire Mass AG's numbers,were 2.854 for the 25 beach transients and 2.3, I believe, for the permanent I Beritage Reporting Corporation -\ * (202) 628-4Ga8 . 6 _ _ . _ _ _ _ _ . _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ m .______ ____ _.__ __
)
24446 . 1 - residents. 2 And the reason the issue came on, Your Honor, was 3 that the Adler-High-Befort Panel was contending that there 4 were 38,000 some odd cars on the beach on a good beach day. 5 And they arrived at that conclusion two different ways. 6 The first way.that they arrived at that . 7 conclusion, about which most of their testimony was, most of 8 the fighting was through analysis of the aerial photos. 9 The second way that they arrived at that 10 conclusion was to take the number of people on the beach, 11 divide it by 2.854, and they came up with their 38,000 12 number again. 13 MR. FIERCE: I think that's just not correct. I 14 think it was a projection to population from their vehicle l 15 counts, multiplying by a number they derived from the Luloff 16 survey of 2.854, to come up with an estimate of the number 17 of people on the beach. 18 And as that issue played out, and we told you it i 19 was not an issue that was relevant for ETEs, but it might be l I 20 relevant for the beach sheltering issues; how many people 21 were actually on the beaches, not how many vehicles. 1 22 As it turns out, and as I read your decision, I
=l 23 just don't see that that issue ever did become a material
- i 24 one: the actual number of people. Everybody agreed there j 1
25 were tens of thousands. j Heritage Reporting Corporation 1 (202) 628-4888 i
)
24447 1 And with respect to sheltering, well, Your Honors l 2 did what-you have.done. But- it didn't get decided. This l
.i 3 was not a decided issue. l
- 1. '
l 4 l
. , l 5 >l >
6 1 7 l 8 9- I 10-11 12 , 13 14 .. 15 . 16 l 17 I l 18 19 20
. 21 22-23 24 25 Heritage Reporting Corporation.
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24448 1 JUDGE SMITH: The beach occupancy, the occupancy 2 rate was never material to the decision. It wara never 3 decided.
~
4 MR. FIERCE: It was never material to ETEs at al1. 5 JUDGE SMITH: Because we were evacuating cars. 6 MR. FIERCE: Cars. 7 MR. TURK: Your Honor, the reason why vehicle 8 occupancy rate was important, again au I recall that 9 litigation, was you didn't know how many people were going 10 to be on the beach, because you conidn't count the people on 11 the beach as easily as you could count people in cars. So a 12 construct was used. 13 And what we did was we litigated how many people 14 should you expect to be in the cars on an average basis. 15 That total number of persons was then projected to go to the 16 reception centers. 17 So it was a relevant part and material part of l 18 your decision on what the proper planning basis should be in 19 New Hampshire. 20 I would say that, unless they can come in here now 21 and say there is a reason why the number of vehicles per car .- 22 is likely to be different from Massachusetts than it was for , 23 New Hampshire. ! 24 JUDGE SMITH: Yes. 25 But take us directly to where it was applied in , i l Heritage Report %ng Corporation I (202) 628-4888 j i l I
N 24449
- 1 New Hampshire?-
e , , . f. L 2 .! MR. ' ' TURK: . In that:same table,fYour; Honor, that i' 3' Dr. Cole' referred to before, which was used as-the basis'for-l 4 determining'how many personnel'were required in the 5 reception' centers, that 2.6' number you see'there was the
-. 6 . vehicle' occupancy. rate.- ..
7 JUDGE SMITH: Right. 8 For permanent. population. 9- MR.LTURK: Which is moreEconservative than'the' 10 beach number.- In'other words, if the beach number was-
~
11' .something.like 2.3 or 2.4 then you would have to have.a; 12 lesser number of personnel;at.the' reception centers. 13 What your decision did, and I.think~what.the 14 Applicants' testimony'did then was'they.went to the more-15 conservative approach'and they~said, let's use.the'. higher 16 vehicle occupancy figure and'use that to estimate'an even-17 larger population arriving at reception centers. 18 And based on that larger. number will estimate how 19 many persons we need to employ in the reception centers for 20 monitoring purposes.
.- 21 OUDGE SMITH: .What did Interveners argue with 22 respect'to vehicle occupancy rateL for monitoring 23 calculations?
24 MR.. TURK:. 'I confess, I don't' recall,.;Your Honor. 25 JUDGE SMITH: Does anybody.know? , { Beritage Reporting Corporation
.(202) 628-4888-L_x_________-____________l__. _. _
24450
- 1 MR. TURK: I could look at their findings and I 2 could find their proposed findings. I think they addressed 3 it there.
4 JUDGE SMITH: Could we do that. 5 (Pause to review document.) 6 MR. TURK: Incidenta31y, Your Honor, I recall Dr., 7 Urbanik in fact did address in his prefiled direct testimony 8 in New Hampshiro the question of whether the number of 9 permanent residents and transient residents was 10 appropriately calculated by the applicants. And he came 11 down very affirmatively saying, yes, the vehicle occupancy 12 number used for the permanent population was correct. 13 JUDGE SMITH: And we found that was especially 14 within his expertise. ! 15 MR. TURK: I would have to look at the decision. l 16 JUDGE SMITH: Page 801, 9.119. i l 17 (Pause) ! i 18 JUDGE SMITH: No, that was a different matter. 19 You cite on page 7 of your motion, Mr. Trout, you l 20 say: "The Board implicitly accepted the 2.4 persons per 21 vehicle number and rejected Interveners' claim of 2.85 for
,j l 22 vehicles." And you cite page 803 of the decision.
j 23 (Pause) 24 JUDGE SMITH: I can't draw that inference as l l 25 easily as you have. Heritage Reporting Corporation - (202) 628-4888 .
24451;
'l MR.-TROUT: Your' Honor,'I' drew the' inference.from ,
2 -9.130 where the Board says:l '"That Applicants will have 3 provided an accurate analysis of the time required to 4 evacuate.the Seabrook EPZ within the scope'of.the 5 cont ntions." And then.there.are the two" caveats that-the 6 Board makes. The-two corrections the-Board calls upon to be 7 made. 8 It's in,that finding of. accuracy, Your' Honor,-that 9 I think the-issue!of 2.4 is subsumed. 10 JUDGE SMITH:- I think what we have before us-was. 11 -- how again was the 2.4 used in the ETEs; explain that to
. 12 me again, I forget that?-
13 MR. TROUT: Used in the ETEs? 14 JUDGE SMITH: 'Yes. l k 15 I don't recall there was. 16 MR. TROUT: It's used to count cars,kYour. Honor. q
. I 17 MR. TURK: It wasn't used for ETE purposes, Your .j 18 Honor. It was relevant for other purposes. 'And that was.
19 one of our points. 20 JUDGE SMITH:. Well, we'found the cars in the ETE.
.. 21 MR. TURK: That's right.-
l 22 JUDGE SMITH: And we didn't useLany 2.4 in.our l
. j i
23 finding that the ETEs were accurate. ] I L 24 MR. TUNK: That's right. . ' 25 -It only becomes relevant for your prior decision. , q l i Heritage Reporting Corporation 4%_ (202): 628-4888 .j i 1 l i I _ _ =_ = .__
24452 I 1 with respect to how many people would have to be sheltered. ! 2 JUDGE SMITH: Yes. 3 14 1. TURK: Or how many people would have to be 4 accommodated at reception centers. 5 JUDGE SMITH: Right. 6 MR. TROUT: Excuse me for a moment, Your Honor, I 7 just want to consult with Mr. Dignan, if that's agreeable. 8 (Counsel consults.) 9 MR. TROUT: Mr. Dignan is helping me to find the J 10 connection. 11 JUDGE SMITH: Now, there's a part in our 12 sheltering decision where we talked about the number of 13 people to be sheltored. 14 MR'. TROUT: Yes. .j 15 JUDGE SMITH: But I think that we sort of tippy-16 toed all around that. I don't remember. But we.said, no 17 matter whose population estimate, there would be adequate 18 sheltering. But I don',t remember finding any -- I guess my 19 mind is a blank on it. 20 Point to where we have made some findings on 21 population estimates for sheltering at the beach? It's .' l 22 under adequacy of sheltering. Amount of sheltering. , l 23 MR. TURK: Your Honor, I believe it might be 24 covered implicitly in your number 8.83, page 771 where you 25 say: "The shelter survey indicates some three times as much Heritage Reporting Corporation (202) 628-4888
l 24453 I
} 1- potential shelter space as is necessary, as available." And
'd 2 there's a citation to Applicants' testimony.
3 JUDGE SMITH: Yes. 4, I think-that the answer is going to lie on, to 5 what extent the -- what was your testimony? No. 7, 6- assumption of 2.4 was attacked by, Interveners, and I don't 7 know. So far you only have the footnote. But I don't know. 8 The only thing I know is what you're telling us.from what 9 the record says. , 10 But I can't yet find any finding that we have made 11 that is decided as a material part of our decision that 12 transient beach population has a 2.4 vehicle occupancy; you 13 haven't found that yet. [ \ 14 MR. TROUT: I guess, Your Honor, I fall back on. (- / 15 the position that the Board could not have made the ruling 16 that it did. Could not have found monitoring in New 17 Hampshire to be adequate. 18 JUDGE SMITH: The 2.6 subsumed the 2.4? If we had 1 19 adopted their 2.85 something, we would necessarily have 20 found more monitoring. '. 21 MR. TROUT: Yes.
, 22 MR. FIERCE: That's just not --
23 JUDGE SMITH: So at least our finding bounds the , l l 24 occupancy rate for the beach. 25 Well, the only thing we found there, we used the I \ (' '( Heritage Reporting Corporation , l (202) 628-4888 j l - 1 i
1 24454 . 1 2.6 vehicle occupancy rate developed with respect to ETEs. . 2 And without further citation I think you could 3 argue logically that that may have been a conservatism, but 4 I don't think that you can point to that as a decision 5 rising to the level of res judicata. It could very well 6 have been an incomplete decision, I don't know. I just l . 7 can't defend the statement. 8 I cannot defend the statement with the assurance 9 that the 2.6 subsumed the 2.4 and was a conservatism, 10 although, in fact, it is. 11 (Pause) 12 JUDGE SMITH: I guess again, however, to what 13 extent for the purposes of sheltering did we litigate 2.4? 14 Putting aside whether we used it or not or we used it 15 precisely. 16 MR. TROUT: We're consulting'the proposed l 17 findings, Your Honor. 18 JUDGE SMITH: Maybe we can return after lunch and 19 address both of these opened items. 20 MR. TROUT: Very well. 21 JUDGE SMITH: Return at 1 o' clock. 22 (Whereupon, at 11:57 a.m. the hearing was receseed 23 to reconvene at 1:00 p.m., this same day, Wednesday, . 24 June 7, 1989.) 25 Heritage Reporting Corporation (202), 628-4888
24455 1 &EIEBH2QH EEE1I2H t 2 (1:06 p.m.') 3 JUDGE SMITH: I guess we are ready. 4 . What's your pleasure? - 5 MR. FIERCE: I'm prepared to explain to you why we 6 believe this issue was within the scope of litigated 7 contentions, Your Honor. 8 JUDGE SMITH: All right, that's a good one.- 9 MR. FIERCE: Perhaps the first thing to do is'to j 10 note for the Board that there'is another contention, JI-21, 11 which directly raises population issues. And in the obscure 12 way sometimes that NRC contentions get-drafted so that they_ 13 are linked to a regulatory standard,_or a NUREG guidance , 14 element, thaf. contention challenges the population figures-
\
. 15 used in the SPMC by --
16 JUDGE SMITH:- What page? 17 MR. g 3RCE:. The contention document I'm looking 18 at has it on page 46. It's the original contention 19 document. 20 The most recent document that the Applicants had _, 21 produced indicated erroneously that it had been withdrawn; 22 It had not been. , 23 MR. TROUT: At the time that the document was 24 served on the parties, it had been withdrawn. It hae-25 subsequently been withdrawn. ( ' Heritage Reporting Corporation
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24456 - 1 MR. FIERCE: That was one of the issues that was 2 addressed in the ETE stipulation. 3 Even there, however, with respect to maps and.
. 4 other matters alleged, it was part of the stipulation that 5 the issue of population, the population figuros --
6 JUDGE SMITH: Well, wait until we find the 7 contention. 8 MR. TROUT: Your Honor, the difficulty that the 9 Board is going to have in finding.the current version of 10 JI-21 is that the text of JI-21 was altered, was reduced in 11 the February 7th stipulation. There were originally two 12 issues in the contention, and that February 7th stipulation 13 reduced it to one. . 14 Th'e February 16th stipulation, the ETE 15 stipulation, the one that came unhinged later, got rid of 16 that issue, too. 17 ' But the contention as it presently' exists, the 18 text of it really can only be found in the February 7th - 19 stipulation, and which I believe Mr. Chan is bringing up to 20 you. 21 (Pause . ) , 22 MR. FIERCE: Has Your Honor had an opportunity to 23 read that? 24 JUDGE SMITH: Read but not comprehend. 25 MR. FIERCE: Well, let me do what I can to try to l Heritage Reporting Corporation N (202) 628-4888 - 1
8 . . l 24457 1 explain the situation. . 2 The. challenge to the population. figures is to a 3 table in the SPMC. The origina11 contention referred 4 specifically to the Table 3.6.1, it's 3.6-1, excuse me, 5 which is a table'in the SPMC which contains the population L 6 . figures,.both permanent residents and peak summer. midweek 7 and weekend figures. 8 In drafting contentions, we sought.to' challenge 9 those figcres. And to attach it to a regulatory standard, 10 we attached it to the requirement that there be maps showing. 11 population distributions. . 12 So what you see is a challenge to the population 13 figures shcwn on their maps or their lack of maps.
/
/ 14 Originally, it was a lack of maps. But the point is we are 15 challenging the population figures, both the permanent and '
16 the peak population totals listed there for summer midweek 17 and summer weekend, and we allege that they are 18 significantly too low. 19 JUDGE SMITH: But these are evacuation -- ) 20 MR. FIERC5; 10 0 . .
. 21 JUDGE SMITH: Pertain to evacuatior consideration.
22 MR. FIERCE: No, no. 23 What happens, Your Honor, is that throughout a 24 planning document like this one, population. figures are 25 utilized for various purposes, and that is the case with the (
'( s Beritage Reporting Corporation (202) 628-4888 h
24458 . 1 SPMC. We sought not to repetitiously, in a series of 2 s'ubsidiary contentions, challenge assumptions based on 3 population. 4 JUDGE SMITH: Okay. 5 MR. FIERCE: We went directly to the population 6 figures in the plan and said those population figures you 7 are using on Table 3.6-1 are not accurate. That's 8 Contention 21. 9 We had an opportunity to respond to 10 interrogatories put to us. And in the answers to JI-21 l 11 interrogatories, we again had specifically responded that 12 the population figures used in the plans are not high 13 enough. And with respect to the figures, they asked us what 14 information we had. 15 We said, with respect to permanent residents, Dr. 16 Luloff would have information on permanent residents, and 17 that other information regarding the summer peak populations 18 hadn't been calculated. We said the Mass AG had not yet 19 calculated or estimated these figures for the current 20 period. That's JI-21. 21 Now we have JI-56, which I don't think anybody 22 disputes is a challenge to the monitoring rates used in the 23 SPMC. There was a discussion in a conference call that 1 1 24 occurred on January 26th with the Board over the scope of l 25 that contention, because it concerned other issues beside i Heritage Reporting Corporation j (202) 628-4888
24459: 1 monitoring' rates. For example,: decontamination' abilities. 2 And it was as'a result of that telephone 3 conference call that the Board determined that'the issue of. 4 4 monit'oring rates was clearly.in'JI-56.z 5 Now, you also see references-to the number of-
)
6 . evacuees that the~ Applicants'are estimating. That comes: I 7 from Table 3.6-1, which we are directly challenging those i l 8 numbers. 9 So we are challenging monitoring rates and we are 10 challenging population,-Your. Honor. And it's_in that 11 context that this testimony is: relevant. 12 JUDGE SMITH: What's this table again?- 13 MR. FIERCE: Table 3.6-1~of the SPMC. It's in the l 14 plan volume.' It's in Section 3.6. .I have it in my. volume 15 after -- .
. 16 JUDGE SMITH:- Where do you challenge it? .
17 MR. FIERCE: Pardon? ) 18 JUDGE SMITH: Where do you challenge it? 19 MR. FIERCER I challenge it in JI-21.- 20 JUDGE' SMITH: The figures listed on the population
., 21 maps are the tables you are referring to?
22 MR. FIERCE: Well, Your Honor,.they. don't have' -- j J 23 the original condition as-it was first drafted said,.you 24 don't have maps. And what you have is a Table 3.6-1, and 25 , those figures listed there, not only'do you'not have maps,. , l
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24460 1 the table doesn't even list the correct population figures. 2 JUDGE SMITH: Okay. 3 MR. FIERCE: JI-21, I wasn't the drafter of this. 4 It says, "The figure listed on Applicants' population 5 distribution maps." 6 I still don't see any maps. It probably should 7 have listed " listed on Applicants' population tables are 8 inaccurate". 9 MR. TROUT: Allan, we produced the maps to you in 10 February. Amendment 7 has not yet been promulgated. You've 11 seen the maps. 12 (The Board reviews document.) 13 MR. FIERCE: Have you found what you are looking 14 for, Your Honor? , 15 JUDGE SMITH: Yes. I'm trying to see where you 16 get that figure 8300 evacuees from the tables. 17 MR. FIERCE: The figure, Your Honor, 83, if I can 18 explain that. 19 I believe the Applicants are saying that 8300 20 could be monitored in each trailer. That for two trailers, 21 that would be 16,600. And that figure, I believe, Your .- 22 Honor, is directly 20 percent of the number listed on this 23 table. 24 JUDGE SMITH: Oh, I see. , 25 So you are saying we have to read the two Heritage Reporting Corporation (202) 628-4888
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. 24461 j l 1 together, that the 8300 is not a realistic figure because of 2 JI-21.
3 MR. FIERCE: We're clearly challenging population 4 figures . - 5 JUDGE SMITH: An'd, in any event, the rates are 6 wrong. 7- MR. FIERCE: That's right. 'We are looking at the 8 rate and we're looking at the population.- Both-these issues 9 are live issues. We have a regulatory requirement that-10 obviously comes together here with respect to.these two 11 contentions. . , , 12 If anything, the only objection to the Dr. High 13 testimony would be that the label-that we put.on it is that 14 it runs only to JI-56. It has not yet been filed. If we 15 have an opportunity to file it, Your Honor,-I.am announcing' 16 now that we would amend that label and say that it applies 4 17 to JI-56 and JI-21. I 18 JUDGE SMITH: Okay. 19 Mr. Trout. 20 ', MR . FIERCE: Oh, one other thing.
]
.. 21 The answers to the interrogatories, Your Honor, on i i
, 22 JI-56, on JI-56, also allege that, and this is Interrogatory 23 255 again. No , 258. Again, to explain the bases for-tne 24 challenge, it mentions population. It'says there is no 25 basis for the assumption that only 17,000 evacuees would ;
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24462 1 report to reception centers for monitoring. Really it was ' 2 18.6, but we rounded that number up. 3 It's in the answers.to the interrogatories. This 4 .is why the Applicants, I believe, didn't bring this motion. 5 They knew this issue was alive and well, we're litigating 6 it, and I think Mr. Turk has just been off writing his New 7 Hampshire appeal brief and didn't realize these matters. 8 (Laughter) 9 JUDGE SMITH: What do you say to all of this, Mr. 10 Trout? 11 Which side are you on? 12 (Laught'er) 13 MR. TURK: Your Honor, I would like to respond, if 14 I can. 15 JUDGE SMITH: Well, you have an interest.in it.
)
16 MR. TURK: It takes a little while to get back 17 into the pace of this -- 18 JUDGE SMITH: Back into bne real world now. 19 (Laughter) ) i 20 MR. TURK: The hearing has its own rhythm. I 21 MR. TRAFICONTE: It's hard' to dance to, though. =
,J 1
22 (Laughter) l l . *l l 23 MR. TURK: It's sort of like coming out of a rock ' 24 concert and going to sit down and listen to Tchaikovsky and 25 really the first few measures you may miss, but I'm getting l l( Heritage Reporting Corporation ' (202) 628-4888 ;
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24463- 1 j 1 back into the rhythm a little bit.. - k 2 JUDGE McCOLLOM:. Which is the rock concert? 3 (Laughter) j i 4 HR. DIGNAN: The' Appeal Board. 1 4 a 5 (Laughter)- '
~
]I 6 MR.' TURK: With-all deference to'Mr. Fierce'a,
-f 7 arguments, I'm notf persuaded that the issueEis before the (
8 Board. 9 First, I don't think there is.any serious dispute 10 by. Mass AG that.56 is not the right contention-to hang this 11 testimony on. The only lines in JI-56 which could_ -
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1:2 conceivably apply would be those words dealing with the'
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13 monitoring rate,.the two sentences'in there. f 14 :As I read the contention, that: dealt.with how many \ 15 . people can be processed through the showers'and through the 16 monitoring areas. 17 JUDGE SMITH: Well, the contention'or the basis? 18 Tho contention, it seems to me, fairly cover's it. 19 The basis may not, and the Board had-already come to a 20 tentative. conclusion that it would not, absent the
, 21 information that we got from Mr. Fierce about JI-21.
22 MR. TURK: All right. 23- When I go back into JI-21, I still-don't see a 24 challenge to the planning basis for the reception centers.- 25 I see some general language about-the fact that -- f ' Heritage' Reporting Corporation - (?02) 628-4888 s -
. i 24464 ,- 1 JUDGE SMITH: Not the planning -- oh, all right. '
2 MR. FIERCE: Your Honor. 3 (The Board confers.)
- 4 JUDGE SMITH: Would you -- the relevance of the 5 telephone conference call?
l 6 MR. FIERCE: All I can tell you is this was a 7 contention that went through a certain evolution. 8 JUDGE SMITH: Right. Yes. 9 MR. FIERCE: There originally had been -- there ; 1 10 was language about monitoring rate which had been stricken ) 1 11 out. i l 12 JUDGE SMITH: Right. 13 MR. FIERCE: As a result of the telephone , i 14 conference call, it,became clear, I think, beyond dispute l 15 that the issue of monitoring rates was in. 16 JUDGE SMITH: Right. No one is challenging that. 17 MR. FIERCE: Okay. I 38 Population is JI-21. ! 19 JUDGE SMITH: I think we could skip the telephone 20 conference call, because that's not in issue. 21 MR. FIERCE: Okay. .- . 22 JUDGE SMITH: All right. , 23 MR. TURK: Your Honor, in terms of monitoring 24 rate, I still don't see that,as an issue in the contention. 25 What 56 had said was that the Applicants are assuming you i Heritage Reporting Corporation (202) 628-4888 . S
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24465 g 1 _can put through 1.2 people per minute-through that area, if 2 I'm not mistaken, and that's what they were challenging. 3 Not how many people will be coming through, but how fast- i 4 they can be processed. 1 l 5 MR. TRAFICONTE: Your Honor, if I can interrupt. f i 6 I was on the --
~1 MR. TURK: Well, you know, Mr. Traficonte, if you 8 don't mind, it's all very well and good if you want to 9 interrupt. But let me finish, okay?
10 MR. TRAFICONTE: How can it be well and good to-11 interrupt then? . 12 MR. TURK: Well, you can want what you want. 13 (Laughter) 14 , MR' TRAFICONTE: I think we're back to normal. 15 MR. DIGNAN: Turk's back. 16 (Laughter) 17 MR. FIERCE: Sounds like you are in the flow 1 ! 18 already. 19 JUDGE McCOLLOM: And in rhythm. 20 (Laughter) ] i 21 MR. TURK: What's the words say in that contention 22' is there are 14 monitoring stations and two showers in each 23 trailer. That will work out to approximately 1.2 minutes to 24 get each ev,acuee passed through a monitoring station, which~ l 25 is not possible in the real world. That's what their i Heritage Reporting Corporation ; (202) 628-4888 -l I l _ __-___ ___ _ _ ___ A
O e O O O 6 m l i l l I 1 Ol' I i l I l
1-24466 1 challenge was.: How fast' people can be processed through,
~2 not how many. people were coming.
'3 JUDGE SMITH: This is also'a contention which.is 4 accepted'in NRC practice, which~says you fail to meet:your l
5 burden by explaining.how you'are going to do alllof this, a 6 and it's one of the contentions that'says'you just haven't 7 said what you need to say, and'you can't tell from.any-of 8 the factors presented how you.are going to monitor these 9 people. 10 MR. TURK: But it starts with an. assumption that 11 the. number of people postulated is correct. 12 MR. FIERCE: No. 13 MR. TURK: But that's all that's' incorrect,.is how 14 fast can that number of people be processed through.:
\.
15 JUDGE SMITH:L Well, that's the way.I would have' 16 read it. .I hesitated a'little bit over the word " claimed"' 17 8300. But-I still read it that they were not disputing that' 18 assumption until he introduced JI-21 into the mix. 19 And I think without JI-21 he would be having some 20 difficulty.
. 21 MR. FIERCE: JI-21 was meant to be a challenge to . 22 what we believe is a planning basis that the SPMC relies on' ,
23 a certain set of population figures. And here is one of the-24 instances whers.that planning basis gets applied with 25 respect to a regulatory standard. ( - Heritage Reporting Corporation (202)' 628-4888
l i
-l 24467 1 The mention of the 8300 was just to figure out l l
2 what the rate was they were using. If you did the division, 3 you come up with the 1.2 minutes per evacuee. That's not a 1 4 number that's in the plans. That just shows where that I 5 calculation came from. They are claiming they can monitor ! l
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6 at that rate. We say thcy can't. ) 7 We say over here that their population figures are 1 8 wrong. We are bringing them together in the testimony, 9 that's true. 10 MR. TROUT: But in neither place does Mass AG say 11 that the vehicle occupancy rate is wrong. I mean putting i 12 this -- { 13 JUDGE SMITH: Wait a minute. We're not on that 14 yet. 15 MR. TROUT: I realize that, Your Honor. I just l l 16 want to put a foot -- I want to put a note in that )l 17 regardless of how this motion affects the testimony as a , 18 whole, when we get to that little piece of it that goes to l 19 vehicle occupancy rate, I want to argue it, assuming we get 1 20 that far. l 21
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22 l . 23 1 24 i 1 25 i k-Heritage Reporting Corporation (202) 628-4888 9' i i
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24468 . MR. TURK:- Your Honor, with your. indulgence I'm' l 1 2' trying to find their responses to interrogatories on No. 21 3 to see if, in fact, their current interpretation of their i 4 contention is new or if it is something they advanced all-5 along. l
. J 6 If'I can ask your indulgence one more moment.- I 7 MR. FIERCE: As to JI-21 --
8 JUDud SMITH: It is right there. 9 (Pause) 10 MR. TmMK: The interrogatory' answers are not very 11 helpful, Your Honor. 12 It's harJ.to make argument from them which way -- 13 exactly what Mass'Ag was.saying in support of the f 14 contention. What they say is, when they were asked-to state ( 15 1 all facts underlying their assertion that the. figures for 16 permanent residents are incorrect, they say the facts qu 17 available at this time include the testimony of Dr.'Luloff. j 18 in the New Hampshire proceedings, answers given byLlocal 19 communities as to their population sizes. That's pretty I 20 much it. i
. 21 They were asked to state all facts which underlie .
'I i
22 their assertion that peak population totals for summer week 23 and summer weekend are significantly too low. j i 24 And again they say, well, the facts available to 25 us include the'Befort, High, and'Adler testimony in the New i Beritage Reporting- Corporation 05 (202) 628-4888
. f 24469 .
1 Hampshire proceeding; Luloff's testimony in the New 2 Hampshire proceeding; and, the answers given by local 3 communities to interrogatories about the size of their 4 populations. 5 I can't make an argument one way or the other. 6 JUDGE SMITH: You have to bear in mind the 7 population tables and maps are not an end in themselves. 8 They only have significance in that they're going to be 9 applied to some other purpose. I think you can fairly 10 impute JI-21 into 56. 11 I think for this purpose we have to give the 12 benefit of the doubt. - 13 (The Board confers.) 14 JUDGE SMITH: So our ruling that reading JI-21'and 15 JI-56 are within the same context, the issue is still alive 16 -- is co'ered v by those contentions. 17 Now the issue of what is required under the 18 planning standard, the entire population, a percent of it, 19 and do we have to take the peak of the peaks or the peak, 20 will that be sufficient, that is one of the items we had l 21 left over from lunch. . .- l 22 Is there any additional arguments you want to make . 23 on that? 24 MR. FIERCE: Your Honor, I don't want to belabor 25 this. The Krimm memo says what it says. It says, peak [ Heritage Reporting Corporation
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f 24470 3 1 population. 2- I don't have.at my fingertip the citations'to' 3 other cases which I'm sure are out there,.which refer back 4 to the Krimm memo. And I would like, at least, an
. '5 opportunity,.whatever the ruling, to at'least~come'back and' 6 ask for'your reconsideration if I can find some case law on.-
7 that. 8 JUDGE SMITH: AIAB-905.was the' only one thatitakes 9 .it up, I believe. Isn't it 905?.. 10 'MR. BACHMANN: 1905.
- 11. MR. FIERCE:. 905 takes it up, yes.
12 JUDGE SMITH: Do you want to defer until you've 13 . read that? 14 'MR FIERCE: Well, I've'certainly.rea'd that.- 15 JUDGE. SMITH: See,.just remember'905. Okay. You 16 have-read it. That's the only one that I think takes up'the 17 Krimm memo. 18 MR. FIERCE: The question is, what does the. word 19 " peak" mean in the Krimm. memorandum, if that's the'. issue , 1 20 we're exploring at least legally. There may be some other
. 21 cases out there prior to'905 which analyzes that issue, and'
, 22 I-would think they might have'some-relevance to this-1 23 discussion. l 24 JUDGE SMITH: You think what may have other cases?. 'l
.1
'25. MR. FIERCE: . There may be other cases,.other l
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1 I 24471 . 1 Licensing Board decisions where the issue of 20 percent was 2 litigated based on some conflicting issue of what was peak. 3 JUDGE SMITH: I doubt it. 4 Mr. Flynn says, no. 5 I don't know when it would have come up. In any 6 event, we're not going to delay for another Licensing Board. l 7 ALAB-905, as we observed in our decision, on the 1 8 face of it, seemed to be inconsistent with the decision we 9 arrived at. One aspect of 905 which wasn't inconsistent 10 was: 905 was saying you have to take a realistic look at 11 what the situation is in the EPZ. And that's the real basis 12 for remanding it. 13 What have you got down there, really? In fact, 14 they refused to accept any mechanistic approach to it. 15 And I think that same reasoning might not help you 16 in this case. 17 MR. FIERCE: Well, I think as long as Your Honors 18 are applying the 20 percent rule rather than allowing that 19 realistic inquiry, which might allow that figure to go up or 20 down, I grant you that. We would certainly be arguing that 21 it's higher and the Applicants might'be arguing that it's ' 22 lower. ,. 23 But as long as we're stuck with 20 percent, I'm 24 saying isn't that a limitation enough such that we ought to 25 be able to look at, at least, the maximum peak -- the peak.
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. 1' .We are taking 20 percent of.that already.and they. don't"need-E 2 any further help on this one,.Your. Honor.
3 JUDGE. SMITH: -See, we don't approach it.that way. l' 4 MR.-FIERCE: I've-been trying for some time to 5 point out to you one additional sentence of your New 6 Hampshire decision which comes at.the point where you are, 7 coming to the conclusion that-for ETE purposes the 8 reasonable expectable peak would be a more appropriate 9 number. 10 In paragraph.9.106 on page198 of the decision, 11 after discussing.the Urbanik opinion'-- 9.106. .It's the-12 'last sentence on that page, on 798. You point out"that: 13 "Nevertheless, if information about.the maximum peak summer' day is available it.sh'ou1d be identified for any appropriate
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f 14
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15 use." 16 I submit you were leaving.that issue open, what 17 other appropriate uses might be. l 18 JUDGE SMITH: No, here is what we were saying 19 there. Let me see that. l 20 (The Board reviews document.) l-
~~. 21 JUDGE SMITH: Yes.. We're agreeing in that finding 22 with Urbanik that if you're going to be doing these things l 23 it should be the reasonably expectable peak. The one that 24 really should be looked at.
25 In any event, as we went down the road we said, Beritage Reporting Corporation (- (202) 628-4888
- 24473 ,
1 any ETE within the range argued by the Interveners and the 2 Applicants is unlikely to affect the protective action 3 choice. 4 But we said, as a matter of some of the cases 5 which we cited in our ETE decision, without further 6 analysis, without plugging it into our decision as to the i 7 utility, we accept the mandate of the Appeal Board and the-8 Commission, I believe. That aside from all that, as an 9 extra, the State of New Hampshire is entitled to have 10 accurate ETEs if they're attainable, even if we don't 11 believe that they would affect the protective action 12 recommendation or even be useful. 13 In fact, that's what we said, there they are. If 14 they find them useful, that's up to them. There they are. 15 But in earlier cases the Appeal Board said that l 16 the question is accuracy and we believe so long as there is 17 an additional level of accuracy which is reasonably 18 achievable, even if it is irrelevant to the pr'otective 19 action, give it to them. Let them decide in the event of an 20 emergency if those circumstances are there. That's what
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21 we're saying there.. - 22 Now, this is a little bit different matter. I ,. 23 think Ms. Doughty has put the consideration on a logical 24 track here in her argument. It goes both ways. 25 MR. TRAFICONTE: I'm sorry, Your Honor, I would ( Heritage Reporting Corporation (202) 628-4888
24474-1 just like to' add to what Mr. Fierce has just. Just two very
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w 2 brief points. 3 First, this being a matter of law. As I 4 understand how we have arrived at the 20 percent figure, the 5 Board has basically taken the Krimm memorandum'of 20' 6 percent. . 7 JUDGE SMITH: Exactly. 8 MR. TRAFICONTE: And said,-that is the standard.- l 9 JUDGE SMITH: That is the standard that we accept. 10 MR. TRAFICONTE: That you're accepting. 11 That point, it seems to me curiously enough, what-12 peak means becomes an issue of fact in FEMA's view. In 13 other words, the Krimm memorandum - .if it's 20 percent of l, 14 the peak in the Krimm memorandum, then what FEMA intends by ,\ 15 that -- 16 MR. DIGNAN: Let's dispense with that. 17 The memo does not use the word " peak." 18 MR. TRAFICONTE: Pardon me? 19 MR. DIGNAN: The memo doesn't say " peak."- 1 20 You are all operating on a bad premise. The Krimm' l l*. 21 memorandum does not say 20 percent of'the peak. What it 22 says is: "A minimum of 20 percent of the estimated 23 population to be evacuated." 24 Now, in the particular case we're involved in
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25 here, that certainly doesn't mean that peak of peaks, i
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24475 1 because all of those day transients aren't people to be i 7 2 evacuated. They're going to go home. They don't need a 3 congregate care center. 4 The people to be evacuated are those who otherwise' 5 would be in the EPZ and are going to be taken out of the EPZ 6 and you got to have some place to put them. And that's what 7 the congregate care centers are for. 8 .So it isn't even close to being 20 percent of the 9 peak, either in this setting or generally,. That's not what I' 10 the memo says. And it certainly isn't what it means in the 11 case of Seabrook. 12 MR. TRAFICONTE: Let me just finish my point. 13 The memo speaks for itself. I don't have a copy 1 14 of it in front of me. Let me say two things. 15 I think it may very well then be a matter of fact 16 as to what FEMA intended. I cross-examined Mr. Donovan on 17 this very point, and without having that transcript in front 18 of me I know I pressed him on what the 20 percent is 19 multiplied times. And again, he said what he said. 20 But I recall you add the transient population and l l 21 the permanent resident population at the peak time. That's .- 22 number one: the issue of whether this is a fact question or , 23 a legal question. 24 The other point I would want to make, and I'm . 25 probably repeatir:g what Ms. Doughty said, although I think Heritage Reporting Corporation (- - (202) 628-4888 e
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. l 24476
, 1 it's very-important. .Your discussion of the ETE, the use of 7(.
\' 2 the reasonable peak'as-opposed to the peak'of the peaks 3 reflected the use of that number. That's to say, what is it 4 used for? It's used to generate an ETE.
5 Well, you may be' erring on the side of over-l conservatism to use the peak of the peak numb'ers because 6' 7 .that may be a mistake. You may want a. lower number. 8 Here, on th'e other hand, what is the number being 9 used for? The 20 percent figure multiplied times a peak. 10 sets a requirement for the Applicants to arr'ange'for 11 adequate monitoring facilities. 12 It's a very different use of the number. It sets 13 a maximum capacity facility and personnel requirement so [N- 14 that no matter.what happens, essentially, over a period of 4 15 time into the future, there is going to be enough monitoring ' 16 capacity. At least that's the assumption that the planning 17 basis makes. 18 In that context it seems to me-the peak could 19 legitimately be interpreted as, in fact, peak of the peaks 20 because it's used as a cap. It has got a margin of safety
- l
. 21 that you would want if you're trying to set the parameter of j l I l,
22 capacity for monitoring, but what you would not want if you I l 23 were trying to set a realistic reasonable ETE calculation. 24 I think that's a fairly persuasive point, that the
]
25 word " peak" could be interpreted in different ways and l l( Heritage Reporting Corporation * (202) 628-4888 ; 1
24477 1 different settings. But in this instance it should be used 2 as the most -- it should be the figure that represents the 3 most reasonable estimates of the population at its peak. 4 Because you are then cutting 20 percent of it; and then, you 5 are then setting that as a boundary or a requirement for 6 capacity. 7 6 l 9 10 11 12 13 14 15 16 17 18 19 20
. 21 22 l
23 24 25 Heritage Reporting Corporation - (202) 628-4888 *
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- 24476
, 1- it's very important. Your discussion of the ETE, the use of 2 the reasonable peak as opposed.to the peak of the peaks' 3 reflected the use of that number. That's to say, what is it 4 used for? It's used to generate an ETE.
5 Well, you may be erring on the side of over-6' conservatism to use the peak of the peak numbers because 7 .that may be a mistake. You may want a lower number. Here, on the other hand, what is the numberIbeing-
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8 9 used for? The~20 percent figure multiplied times a peak 10 sets a requirement for the Applicants to arrange for 11 adequate monitoring facilities. 12 It's a very different use of the number. It sets 13 a maximum capacity facility and personnel requirement so 14 that no matter what happens, essentially, over a period of 15 time into the future, there is going to be enough monitoring { 16 capacity. At-least that's the assumption that the planning j i 17 basis makes. ! 18 In that context f.t seems to me the peak could 19 legitimately be interpreted as, in fact, peak of the peaks 20 because it's used as a cap. It has got a margin of safety
. 21 that you would want if you're trying to set the parameter of
. 22 capacity for monitoring, but what you would not want if you 23 were trying to set a realistic reasonable ETE calculation. 24 I think that's a fairly persuasive point, that the 25 word " peak" could be interpreted in different ways and ! Heritage Reporting Corporation
* (202) 628-4888
24477 7 1 different settings. But in this instance it should be used 2 as the most -- it should be the figure that represents the 3 most reasonable estimates of the population at its peak. 4 Because you are then cutting 20 percent of it; and then, you 5 are then setting that as a bound.ary or a requirement for 6 capacity. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 . 21 .. 22 23 24 25 , Heritage Reporting Corporation (202) 628-4888
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24478 (~~'N 1 MR. FLYNN: Your Honor, I'd like to suggest that
'-- 2 Mr. Traficonte's argument has read more into the Krimm memo 3 than it intended.
4 It is certainly clear to'me, although I will admit 5 this is based on matters not on evidence, that what was 6 taken into consideration when the memorandum was written was 7 not nearly as elaborate or as well analyzed as the 8 discussion here today. l 9 JUDGE SMITH: That's right. I would doubt if he 10 would ever have envisioned the application that is being 11 argued. . 12 MR. FLYNN: Since we seem to have all accepted the 13 idea that this is a question of lawg ultimately it's the
/,- 14 Board's interpretation or the Board's judgment that matters (s_-
15 and will apply. 16 But I would like to point out that the Krimm 17 memorandum addresses a planning basis, and it is not clear 18 from that memorandum that there was ever any intention to 19 make sure that every possible evacuee would be accounted 20 for, or that provision for monitoring every possible evacuee
. 21 would be made.
22 It wasn't the worst case evacuation that was being ( 23 addressed. It was a planning basis, and it's fundamental to 1 24 the concept of planning in the first place that you plan for 25 what you reasonably expect. l l i 7" % I Heritage Reporting Corporation (202) 628-4888 J
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l 24479 , l 1 I think the Board has appropriately suggested that 2 as the standard to be applied. 3 JUDGE SMITH: All right. 4 MR. FIERCE: Your Honor, I would just like to add I 5 one more thing as well as long as we are thinking about it j i 6 in terms of a planning basis. i i 7 I think the planning basis makes some sense in the l l 8 context in which it's applied. And what you have here, l 9 you've,got a large beach population, which the Board has l l l 10 ruled need not be provided for with adequate sheltering for 11 all those people, and the Board is aware of its best efforts 12 decision. 13 And in that context, a large population very close i 14 to the nuclear plant without sheltering as a planning basis 15 which uses only 20 percent of that population to show up for 16 sheltering. l 17 I think the wise planning basis and the prudent i 18 planning basis is one that looks at the peak size of that 19 population in that context. These people are more likely to 20 show up for monitoring because they have had no sheltering 21 made available to them for the most part. .- 22 MR. BACHMANN: Your Honor, if I may just read a , 23 couple of pieces'in the record from NUREG-0654 just so we l 24 sea the logical progression.here. 25 The evaluation criteria J-12, when they are Heritage Reporting Corporation (202) 628-4888
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- 24480-1- talking'about the' reception centers, "Each organization 2 shall describe the means for-registering.and monitoring of 3- evacuees at relocation centers in host areas."
- 4 Now, of course, we.do'know there is a difference
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5 between the. relocation center, which is part congregate care
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6 and part monitoring, and the reception center,.which is 7 solely monitoring. 8 Then I.go on to quote, "The' personnel and- . 9 equipnient ,available should be capable' of monitoring within 10 about a 12-hour people all-residents and transients in the. 11 plume exposure EFZ arriving,at relocation centers." 12 MR. FIERCE: I would just have to interject and -- 13 MR. BACHMANN: I would like to finish. 14 MR. FIERCE: It's different la.nguage in-Supp. 1, 15 Your Honor, which applies to this case.; It's "shall".be 16 capable of monitoring. The language did change somewhat 17 when you moved to Supp. 1. 18 MR.' BACHMANN: I'11 take that correction. 19 JUDGE SMITH: Which changes nothing. 20 MR. BACHMANN: No, it doesn't. '. 21 At page 4-2 of Appendix 4 of 0654,'they have a 22 Roman Numeral II, Demand Estimation. "The objective of this 23 -section is to provide an estimate.of the number of people to j
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24 be evacuated", which I would assume would be the evacuees 25 referred to in J-12. Heritage Reporting Corporation ' (202T 628-4888 i
24481 1 And, of course, the Krimm memorandum said they 2 would estimate that 20 percent of the evacuees would arrive 3 there. 4 ,
"Three potential population segments shall be 5 considered: permanent residents, transients and persons in 6 special facilities."
7 Then it goes on under Roman Numeral II.B, 8 Transient Populations, and whereas the only mention of the 9 word " peak". " Estimates of transient populations shall be 10 developed using local data such as peak tourist volumes and i 11 employment data for large factories." That's the only i 1 12 mention of " peak". l i 13 So I just wanted to keep the record clean on that 14 .so we know where the various words came from. There ,is no l 15 mention in the Krimm memorandum of " peak" transient 16 population. 17 (The Board confers.) ) I 18 JUDGE SMITH: Do you want to be heard? l j 19 MR. TROUT: Just briefly, Your Honor. I l 20 I remain troubled by Mr. Fierce's argument that 21 you have to select the peak of the peaks as a way of ,. 22 compensating for the 20 percent presumption. ,j 23 Nt. Fierce keep arguing that we're only going to 24 be monitoring'20 percent and that this is -- and the 25 assumption in his argument is that this is much too low. So ; (" Heritage Repo'rting Corporation (202) 628-4888 l
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24482
/
1 therefore, you have to compensate for the 20 percent ( . 2 presumption by going to this hypothetical peak of the peaks. 3 The problem with the argument is that he's 4 assuming facts that aren't before the Board and haven't been 5 litigated, and because of the jurisdictional posture of this 6 case can't be litigated. 7' If the Board hadn't already decided in New 8 Hampshire that the only useful evidence'in this case 9 concerning monitoring, expected monitoring. load was the 20 10 percent FEMA presumption and decided on that-basis, Mass AG 11 would probably be in here today arguing that many more than 12 20 percent would be showing up, and-Applicants would be in 13 here arguing that considerably fewer. But we can't' argue 14 that and the Board can't hear that argument be,cause it's - 15 decided. 16 And to have Mass AG come in now'and say that 20 17 percent is not conservative enough, which is not by any 18 means conceded or established or supported by anything in . 19 the record or otherwisa, and saying that on top of that you 20 have to add an additional conservatism by adopting a l
. 21 hypothetical number as your expected -- well, there are 22 three -- they want three levels of conservatism. I 1
23 They want, first of all, the level of conservatism j j 24 that chooses the peak population in the first place as , I 25 opposed to the average population. 0 gN k Heritage Reporting Corporation l (202) 628-4888 I i j L-__________
l 1
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- l 24483 i i
1 . Then they want to compensate for the 20 percent. l . d They don't 2 And then they have this additional conservatism. 3 just take the reasonably expected peak. They want the 4 hypothetical peak of the peaks. And it strikes me it's 5 carrying conservatism to an extreme. 6 The Board could just as easily come in and say, 7 we'll take twice the expected population and we wi11' require 8 that to be the monitoring capacity, because that way we're 9 sure that there is no error. We are certain of that. 10 And I would respectfully suggest that to impose 11 that extra requirement goes beyond the regulations. ( 12 MR. BACHMANN: Your Honor, on that last time I 13 addressed the Board I inadvertently left out a part of what l 14 I wanted to tell you. - 15 Where I quoted on'the sentence about using local 16 data such as peak tourist volumes, that is in Appendix 4, 17 but Appendix 4 is how to calculate ETEs. So the only 18 statement in 0654 that I have been able to find, and perhaps 19 Mr. Flynn can confirm this, that refers to peak transient or
.20 peak tourist volumes is under the evacuation time estimats l 21 calculation methodology. ,.
22 (The Board confers.) , l 23 JUDGE SMITH: The Board is ruling that the number
. 24 based upon 35,000 automobiles, which we alluded to as the 25 peak of the peak, is not a number that is required as a l
Heritage Reporting Corporation (202) 628-4888 4
L - 24484 e I matter of law to be employed as a planning basis for
^N 2 relocation of monitoring and any other. purpose than for 3 which we applied it, the ETEs.
4 And our reasoning has been pretty much discussed 5 .throughout this whole argument, and just let me hit the 6 highlights of it again. 7 First, we note that nobody has ever seen cars 8 anywhere near that.- As a matter of fact, the 35,000,.the 9 36,000 number is 33 percent, 33.3 percent more cars than 10 have ever been counted there in days that were thought to-be-11 near peak, if not peak. - 12 MR. FIERCE: That's not true. 13 JUDGE SMITH: Yes, it is true. We found it, and 14 I'm going to stop and I'm going to allow you to complete 15 your arguments once and for all. 16 We found right here, "Since neither Applicants nor 17 Interveners have ever observed more.than approximately 18 27,000 vehicles". We said it some place else. We have no 19 evidence in here that we found to be credible that there 20 were more vehicles actually counted. It all turned on
. 21 parking places.
22 Now,'is it that you disagree with us, or we have 23 misread the decision, Mr. Fierce? 24 MR. FIERCE: Well, Your Honor. 25 JUDGE SMITH: It's rattling, it's unnerving to me, l l Heritage Reporting Corporation (202) 628-4888
t 24485 . i 1 when I am announcing a decision, to have a lawyer sit there 2 and say, "That's not true". I mean, I am just unaccustomed, 3 except with you, to having this done to me. It does, it 4 shakes me. i 5 MR. FIERCE: It's a factual -- 6 JUDGE SMITH: Because we try to run an informal 7 hearing, and we try to be permissive. You know, I'm just 1 8 too old to get used to a lawyer who sits there and grimaces l l 9 at you and says, "No, it's not true", and speaks out these 10 uncontrolled statements. 11 You are in a forum of law, sir. - 12 MR. FIERCE: Your Honor, it's -- 13 JUDGE SMITH: And I call upon you to adhere to our 14 standards. , 15 MR. FIERCE: I just did disagree with a statement 16 of fact. It's in your opinion. Dr. Befort testified that 17 on July 5th he took photographs after the peak hour. He had 18 seen many more cars there that day at the peak hour than he 19 was able to photograph, and you have even noted that in your 20 testimony. 21 So a statement that nobody had ever seen higher , 1 22 than the 27 -- 23 JUDGE SMITH: Is that what I said?
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24 I should have said " counted". I don't know. 25 Heritage Reporting Corporation (202) 628-4888
l
.- 1 t
'I 24486' l
- j l -
~ /N 1 JUDGE SMITH: But nevertheless,'if you want to 2' move for reconsideration. This is-a.. difficult . issue'for-us l
3 to-decide. We had to consults we had to line up what our. 4 considerations were. We have listened to over two-hours of' 5 argument. 6 We have a decision to announce. And here, I'm 7 sitting here and here'you are. shaking your head and you say, 8 that's not true, that's not'true. It.has got me off the 9 line of reasoning'I was following. .It's disconcerting. 10 I don't think you're accustomed to it either.
'11 What is it? Am I such a nice guy you think you can get:away-12 with all of that with me?
13 Would you do that in,the United States District '[ 14 . Court? Would you say, "No, that's not true, Your Honor?" I f 15 know you would not, Mr. Fierce. I know that you would-not. 16 Or you would not do it more than once in'that court that. 17 day. 18 MR. FIERCE: I would apk for an opportunity to i 19 respond to what I thought was an inaccurata statement. 20 . JUDGE SMITH: .Nevertheless, the reliable evidence ! !* 21 of actual observed and counted cars that we'found.was no l, 22 more than 27,000. We stated that 35,000 was a, quote, l* 23 "quite a conservative number." 24 In that instance, we are using " conservative" in a 25 sense that the Board has indicated before is inappropriate Beritage Reporting Corporation (202) 628-4888
24487 - 1 because conservatism in ETEs is an accuracy and not an 2 overcounting or overestimating. 3 But in the context of the evidence that we had 4 conservatism suggested that we were giving the benefit of 5 doubts of counting in the direction of counting high. 6 If you recall, the peak hour itself, the 7 reasonably expected peak hour during summer months, 8 reasonably expected peak hour was intended to be an allusive 9 hour. Interveners themselves stated that it could not be as 10 we found, the same for all places. That itself was a 11 fle eting moment, building up to 2 o' clock and declining from 12 then. 13 And then when we moved to the peak of the peaks, 14 that which has never actually been measured, we indicated 15 that it was fleeting. And that we were not making it as a 16 matter of requirement for protective action recommendations,- 17 but simply because the finding was there. It was available. 18 It could happen. And the State of New Hampshire was i 19 entitled to the benefit of our evidentiary record and our 20 findings on the subject matter and they might as well have
.l
- 21 it.
22 And that was, what I regard, as the rather narrow -
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i 23 and entreme case in which we directed the Applicants to make i 24 that information available to the State of New Hampshire. ! 25 We made no finding that other peak population s Heritage Reporting Corporation O1 ! (202) 628-4888
j- ) 24488-1 estimates were unreliable. Land, indeed,'the one that we 2 embraced in our' decision was the'one that was' predicated ' . 3 --upon approximately 31,000' automobiles. ;
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- 4 Obviously, the planning standard .2 (j) (12) 5 anticipates the evacuating population l showing up at'the 6 shelters. and requires a ' ddetermination as. to what portion of i 7 .the population that would be.
. 8 20. percent we have accepted from FEMA'as being a '!
9 reasonable estimate'of the' number..of people'of.those 10 evacuating who might.show up at the shelters. It-~isEnot a-11 number that tells us how we.are to predict the number of 12 people who will be evacuating. 13 Our best estimate, as we stated in the' decision,
~
, 14 the one'that is most likely to be found on peak days,,and we 15 knew the difference between the peak and a peak of the peak, 16 was 31,000. And that's the figure we believeTis appropriate 17 to be used for the planning basis-for'the monitoring and 18 decontamination centers as a matter. of the law of thisL case.
19 MR. FIERCE: Your Honor,. may I havet.an opportunity-20 to point out to you what I believe~was'a factual inaccuracy ;
. 21 in the statement you made based on the record.
22 JUDGE SMITH: All right. 23 MR. FIERCE: In the opinion at section 9.120 on 1 24 page 801 you do note that: 9Together the 29,300 parked 25 vehicles seen, the 1500 vehicles seen on the roads,'and /~' ] ( Beritage . Reporting Corporation (202) 628-4888
-i
)
)
24489 . 1 2,000 more that were likely parked in spaces hidden from 2 view total 32,800 vehicles that were likely present in the 4 3 beach areas in July 18, 1987." 4 That is a form of counting using estimates -- { 5 JUDGE SMITH: Would you give that to me again? l 6 MR. FIERCE: It's page 801, 7 My point would'just be that the 32,800 vehicles 8 that were likely present on the beach areas on July 18, 1987 9 is, in fact, 92 percent of the 35,500 figure that Dr. High 10 uses in his testimony. So that's the point I only wish to l 11 make. - 12 JUDGE SMITH: Where is it, the 9.120? i 13 MR. FIERCE: 9.120 at the end, the final sentence. 14 JUDGE SMITH: Right. l 15 That doesn't change anything. As we stated, we l 16 . estimated that at one time there may even have been 35,000. 17 (The Board confers. ) 18 JUDGE SMITH: I don't believe we made a mistake. 19 Thank you. 20 Now, the vehicle rate occupancy issue. 21 MR. TROUT: Well, I wonder, sir, whether the , 22 disposition of this issue and of the Luloff issue doesn't -- 23 JUDGE SMITH: It seems to moot it, doesn't it? 24 MR. TROUT: Yes, it really does, Your Honor. 25 It seems the whole testimony really is based on Heritage Reporting Corporation (202) 628-4888
24490 I those two assumptions: the use of peak of the. peaks and the 2 use of the Luloff population figures. 3 JUDGE SMITH: I don't think we should make a 4 decision it if we don't have to. 5 I was flirting with the idea we might do it just 6 for record purposes, but I don't think we have to. I agree. 7 That takes care of those that we had to decide 8 before. 9 What does that really mean to your motion now? 10 MR. TROUT: I believe, Your Honor, it means that 11 all of the testimony of Dr. Colin High has been excluded. 12 The only thing that it might not touch would be 13 the very last two sentences where Dr. High questions the 20 14 - percent. And I don't think there would be any serious 15 argument that that is res judicata. 16 JUDGE SMITH: e Do you agr'e? 17 JE. FIERCE: Obviously, he is setting forth a 18 . calculation here; Your Honor. 19 JUDGE SMITH: No, I mean, do you agree? l 20 MR. FIERCE: And two of the critical inputs in
. 21 that calculation have now been ruled out-of-bounds.
22 JUDGE SMITH: Right. 23 MR. FIERCE: And therefore, obviously, the 24 conclusion he comes to, based on those two numbers, is not a . 25 meaningful one at this time, y Heritage Reporting Corporation (202) 628-4888
24491 , 1 I think Your Honors should.-- I'm not advocating 2 this, but it seems to me that the testimony without that is 3 not terribly meaningful and you should go ahead and strike 4 it, if that's your ruling. 5 Th2t I would like to, at this time because of the 6 way this is developed, at the time that it is developed, 7 like to note that there are issues in this testimony, again, 8 that are legitimate ones. 9 For example, the formula that he uses is a formula 10 that we believe is the accurate one, not the one that the 11 Applicants themselves are using. Which, for example, throws L 12 out -- throws out 50 percent of the 31,000 beach vehicles 13 before thcy even do their calculation. 14 And to that extent, Your Honor, I would liat An 15 opportunity -- a short opportunity to redraft what is left l 16 of this testimony and present those issues to you, as I 17 would if I had a witness on the. stand and an objection were
. 18 made to a question. I would quickly regroup with my witness 19 and ask him to now, based on that ruling give us -- tell us 20 how his opinion would change. 1 21 . JUDGE SMITH: So you don't agree? .
I 22 MR. FIERCE: I think the testimony as it stands ,.
23 now is not terribly helpful. I would like an -- if Your l 24 Honor wishes to strike it, do so. But I would like an . I 25 opportunity to file, in a refashioned way, not adding g"' Heritage Reporting Corporation (202) 628-4888 i
l . 24492 I anything to the testimony, but at least digging out for your 2 rational review those parts of.the testimony that I believe 3 are here. For example, the formula itself and bring that 4 forth.
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5 or in lieu of that, Your Honor, give me an 6 opportunity to do rebuttal testimony to the Applicants' 7 testimony, if they present any. 8 Maybe we should find out right now. If they',re 9 not going to present any I would like an opportunity to 10 submit recrafted testimony for Dr. High to bring out the 11 - parts that are still here. 12 JUDGE SMITH: What parts are those? . 13 MR. FIERCE: The formula itself, Your Honor, is 14 one. His formula as set forth here is different than the 15 formula utilized by the Applicants in estimating their loads 16 now in some significant ways.
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17 Now, he plugs in different numbers, but at least 18 he has an argument here that the numbers -- excuse me, the 19 formula used by the Applicants is not the correct formula; 20 this is.
. 21 MR. TROUT: Where is that argument? , 22 MR. FIERCE: It's implicit. He is saying, this is 23 the formula that ought to be followed. It's based on the 24 Board's New Hampshire PID. The Applicants use a different 25 formula.
1' Heritage Reporting Corporation , (202) 628-4888
24493 1 MR. DIGNAN: Your Honor, before we take more time 2 up with this, with the realization that Dr. Goble is here to 3 be redirected. Staff witnesses are here, hopefully, Could 4 I respectfully 'suggest that since Mr. Fierce agrees that in 5 its present form the testimony should be stricken, the Board 6 strike the testimony. 7 Mr. Fierce can then go back and recraft anything 8 he wants to and on proper motion try to get the Board to 9 accept it as recrafted. 10 I'll be perfectly candid, when he makes that 11 attempt I will argue strenuously against you exercising your 12 discretion in that favor, but it seems to me that's legally , 13 the way to handle it rather than to discuss further today 14 what might.or might not happen in the future. l l 15 NE FIERCE: Well, I just disagree. 16 MR. DIGNAN: The ruling, it seems to me, is to li strike this testimony. What happens in terms of the 1 18 Attorney General crafting up a new piece of testimony and 19 presenting it to the Board is for another day. 20 JUDGE SMITH: Well, that may be in a perfect 21 world, Mr. Dignan, but we have generally tried to handle .
- 22 matters as they come up or when it's convenient.
l = l 23 I think the best part of your argument is that 24 it's not convenient to do it now. 25 MR. DIGNAN: Well, it's not convenient. But more 9i 1 Heritage Reporting Corporation , j (202) 628-4888 i
24494 1 importantly., Your Honor, how can Your Honor be asked to rule ( 2 as to whether he will accept a piece of testimony that you 3 haven't seen. 4 JUDGE SMITH: I can't, because I don't understand. 5 MR. FIERCE: Because you know what it will 6 contain. It will contain -- 7 MR. DIGNAN: No , you don't'. 8 MR. FIERCE: -- nothing more than what is within 9 the four corners of this document. 10 The formula is here, Your Honor. 11 JUDGE SMITH: I guess the thing for you to do, 12 really, is you are seeking -- I have not understood so far 13 what you have said. 14 MR. FIERCE: Can I try again?' 15 JUDGE SMITH: Why don't you redraft the testimony 16 'the way you want it. You can do that, that's no big deal. 17 And bring it in and tell us exactly what it is. Because as
'18 I flip through here and try to pick up the thread of the 19 argument, I just don't see it. I see the formula that we 20 used in the decision. I don't understand why you want to . 21 preserve that, it's already preserved. .
22 Then you say the Applicants used a different one. 23 And I don't understand that either. 24 MR. FIERCE: How is it already preserved, Your 25 Honor? Heritage Reporting Corporation (202) 628-4888
24495 1 MR. TROUT: All you're doing is quoting the 2 formula from 5.19 of the partial initial decision. 3 MR. FIERCE: That's not what the Applicants are 4 using. 5 MR. TROUT: Why don't you bring that out on cross-6 examination, Allan. You don't need to have a witness get on 7 the witness stand to tell the Board what they have already 8 ruled in New Hampshire. 9 MR. FIERCE: The Applicants are being a little 10 cagey here, Your Honor. I would like to know whether they 11 are going to withdraw their testimony. 12 MR. DIGNAN: Oh, no, no, Hr. Fierce, we're not 13 being cagey. 14 MR. FIERCE: Are you' going to withdraw your 15 testimony? d 16 MR. DIGNAN: I don't know. 17 MR. FIERCE: He doesn't know. 18 MR. DIGNAN: Excuse me, Mr. Fierce -- 19 JUDGE SMITH: Quiet. 20 off the record. I 21 (Whereupon, a recess was taken,.) ,. 22 JUDGE SMITH: In any event, we are not giving you j 23 leave to redraft Dr. High's testimony. We will follow the 24 course recommended by Mr. Dignan that you redraft it, if you 25 wish, and submit it and see what happens. But we can't Heritage Reporting Corporation (202) 628-4888
24496 1 accommodate you. Right now we can't interrupt the hearing 2- to follow through your argument, which so far I was unable 3 to follow, and make the decision right on the spot, 4 prospectively, as you wish us to do which is always - 5 difficult. 6 If you want to avoid the need to redraft it. If 7 you want to schedule it for another argument at some other 8 time, we will try to extend that courtesy to you. But right 9 now we are just not attuned to the argument you are making 10 and we want to get on with the hearing. 11 Dr. High's testimony is rejected. You may offer 12 it as a rejected exhibit, , if you see fit. 13 FR. FIERCE: Yes, I would like to do that. 14 Is this the time to do that now, Your Honor? If 15 so, I would like to make that offer. - l 16 JUDGE SMITH: Dr. Luloff's -- 17 MR. FIERCE: Dr. Luloff's testimony as well. I 18 don't have extra copies of it available, however. l 19 I believe the next exhibit number is 110. 20 JUDGE SMITH: Luloff will be 110; and High will be
. 21 111.
22 23 24 25 Heri'. age Rapporting Corporation (202) 628-4888 ____ _ __ _ _ _ _ = _ _ _ - - - .-. -
24497 - 1 (The documents referred + 2 to were marked for 3 identification as 4 Mass AG Exhibits 110 5 and 111 and were rejected.) 6 JUDGE SMITH: As exhibits, you can give them 7 virtually anytime, but if you don't get them, then you have 8 a problem. 9 Dr. Goble, l 10 MR. TROUT: Your Honor, I think I may have missed 11 a beat. Were.the exhibits offered and rejected? I 12 - JUDGE SMITH: You have offered them now and i
-l 13 Massachusetts Attorney General Exhibit 110, the proposed 14 testimony of Dr. Albert E. Luloff on behalf of Attorney 15 General, Contention JI-2, JI-2, and JI-21 is rejected.
16 And the testimony of Dr. Colin J. High, Contention 17 JI-56 monitoring rate is rejected. 18 Whereupon, 19 ROBERT L. GOBLE 20 having been previously duly sworn, resumed the witness stand 21 herein, and was examined and further testified as follows: , 22 23 24 25 l I i J J Hevitage Reporting Corporation (202) 628-4888 G1
GOBLE - RSDIRECT 24498 1 MR. TRAFICONTE: Your Honor, we neglected to 2 notify the Reporter yesterday of an offer of testimony that 3 was made. The decision was made while he was on the stand, 4 so that we couldn't get it stricken physically before it was 5 bound. So I think I am now going to identify the page and 6 the line. It will be in yesterday's transcript, June 5, and 7 now indicate that it stricken based on yesterday's ruling. 8 It's on page 19, and it is in the section 9 identified " Preparation". It is the next to the last line 10 in,that section. 11 MR. DIGNAN: Next to the last sentence? 12 MR. TRAFICONTE: I'm sorry. The next to the last 13 sentence in that section, and it reads, "The default 14 assumption of an eight-hour release duration used in 15 METPAC's straight line dose projection has not been 16 evaluated relative to the likelihood of wind shifts." 17 That sentence should be stricken. It has been 18 stricken. 19 REDIRECT EXAMINATION 20 BY MR. TRAFICONTE: l
. 21 Q Good afternoon, Dr. Goble.
22 Dr. Goble, do you recall a series of questions 23 concerning the TMI emergency planning project you have been 24 , involved in while you have been at Clark University? 25 A (Goble) Yes.
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GOBLE - REDIRECT 24499 - 1 Q Do you recall some questions from Mr. Dignan 2 concerning the keyhole concept that your TMI plan, proposed 3 plan contains? 4 A (Goble) Yes.. 5 Q Is there a distinction between the use of the 6 keyhole concept in your TMI proposed emergency plan and in 7 the use of the keyhole concept in the SPMC? l 8 A (Goble) Well, the concept, I think, is very 9 similar as Mr. Dignan elicited from me. The form of,the 10 application is different. The SPMC and the New Hampshire 11 plans along with it, if we want to get the full shape of the 12 key, use a more articulated arrangement. l 13 The inner part of the keyhole, the part at which l 14' they do 360-degree arrangements is at two miles. We l l 15 recommended a five mile radius. On the other hand, the 1 16 circumstances at TMI are different from those at Seabrook as l 17 well. l 18 So it's the same idea, but the spatial scale 19 operates differently. 20 0 What differences are there in the circumstances? 21 . A (Goble) Well, at Seabrook you have a much higher . 22 population density. You have much longer evacuation time i 23 estimates. It's appropriate to have a more articulated
. 24 keyhole concept and to use -- not to try to work with 360 25 degrees in a full five mile circle as the plans say. )
l
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GOBLE - REDIRECT 24500 1 l 1 And, in fact, what I think I indicat( 3 in my 1 2 testimony of what I observed in the exercise wi3 that the 3 Seabrook plans would be better with one furthe; articulation 4 of the keyhole. A' split between the eastern a: 3 western 5 Massachusetts sectors just like the split betw en the 6 eastern and western New Hampshire sectors, bot 1. between two 7 and five miles and between five and 10 miles. 8 Q I'm not sure I understand your use o the word 9 " articulated". You say the Seabrook plan shou d have a 10 further " articulation". 11 Can you explain that? 12 A (Goble) I'm sorry. That's an anato: ical term, ll 13 and I'm not actually an expert in anatomy. 14 I simply mean having more distinctio.s made. So 15 dividing the zone into more sectors wherein yo- could choose 16 different protective actions. During the e'xer ise, for 17 example, it was appropriate -- you would have inted to make 18 different protective action recommendations fo- the eastern 19 Massachusetts part of the emergency planning z le than for 20 the western Massachusetts portion. 21 You can't do that unless you identif- those as 22 independent emergency planning areas, or emerg acy planning 23 sectors. 24 Q Can you tell us briefly why the exer ise indicated 25 to you that you would want to do that?
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GOBLE - REDIRECT 24501 - 1 A (Goble) Yes. The two examples which I discussed 2 were the case close to the Town of Salisbury where there was 3 not time to evacuate Salisbury effectively in the exercise 4 scenario . - It would have been better to shelter the 5 residents of Salisbury. 6 Thus, since they were the, people in immediate 7 danger, the protective action recommendation would have been 8 appropriate to recommend sheltering for the zone in which 9 Salisbury is one of the two towns. 10 on the other hand, it would have been better to 11 evacuate Amesbury, and had that zone been divided, have an 12 east-west separation, then you could have ordered an 13 evacuation of Amesbury while recommending sheltering in 14 Salisbury. 15 - Q Let me make sure I'm clear. 16 You are talking about th'e initial protective 17 action recommendation made after a general emergency was 18 declared? 19 A (Goble) That's correct. 20 0 And what was the protective action recommendation > 21 that was made? , 22 A (Goble) The protective action recommendation was 23 made to evacuate the entire area within five miles. 24 O The entire area meaning 360 degrees around the 25 reactor out to five miles? Heritage Reporting Corporation (202) 628-4888
GOBLE - REDIRECT 24502
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1 A (Goble) That'is correct. 9 2 Q And in your view, the exercise' indicates that.that 3 was not a good idea? 4 A (Goble) That's correct. That people in one 5 quarter of that area r namely, the: quarter in which you find 6 the Town of Salisbury, would have been better off had they 7 been sheltered. 8 Q Can you put the point that you have just made, can-9 you put that.and express that in a form;of a refined keyhole 10 concept? 11 Is the question unclear? I'll put a different one 12 out. 13 A (Goble) Well, the argument -- the basic idea of 14 the keyhole is that choice of protective' action can depent.1 15 on the wind direction that you properly use, your ability to-16 forecast where the radioactivity is likely'to-go next. That-17 when you are very close to the plant, the uncertainties 18 provide the biggest effect. Furthermore, you hope'you can 19 handle that close-in population, nat you are not likely to 20 want to distinguish directions very close-into the plant. 21 In the case of Seabrook, effectively very close-in 22 is really a distance more like two miles, just because of 23 the high population densities and the fact that you have
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24 large evacuation times and that you will frequently have to 25 choose between sheltering and evacuation. { Heritage Reporting Corporation -
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GOBLE - REDIRECT 24503 - 1 So it can easily happen that an accident directly 2 downwind can put people's threat of exposure to radioactive 3 material, that they will not with the evacuation times be 4 able to leave in time to avoid this exposure. 5 On the other hand, people not directly downwind, 6 who may be threatened later when the wind is going to shift, 7 would have time to leave and would appropriately evacuate. 8 Q Let me press the point again. 9 Can you express your critique of this first-10 general emergency PAR, can you express your critique of it 11 in the form of a need for a refined keyhole approach? 12 A (Goble) Well, I guess -- I mean I guess there is 13 a geometric argument. You can ask how narrow the blade of 14 the key io appropriate, how narrow a blade of key is 15 appropriate in these circumstances. 16 O Let me put the question a slightly different way. 17 You don't object to using a. keyhole approach, do 18 you? 19 A (Goble) No. 20 0 And they used a keyhole approach? 21 A (Goble) Yes. ,
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22 Q But you don't think they did it right? 23 A (Goble) I think that the appropriate collection 24 of keys for this zone would have keys that distinguish 25 between eastern and western Massachusetts towns between two y Heritage Reporting Corporation - (202) 628-4888
l i GOBLE.- REDIRECT 24504 -!
- - 1 and five miles from the plant, .and between five and 10 miles v
N 2 from the plant. I should draw it on the map. Just as the ] l 3 distinction is made in' the New Hampshire part of the zone. f 4 Q Well, there is a map in fact.in the hearing room. 5 Can you' direct your-attention to it? I don't believe it's 6 marked as an exhibit, but there is a display map,.a colored 7 map in the hearing room. j 8 You will note there are three concentric circles. 9 I'm going to represent to you, and I believe.it's true, that i 10 there are the two, five and 10 mile radius from the plant. 11 The initial PAR,.after a general emergency was 12 declared, was to evacuate from the reactor out to the five i l'3 mile ring, correct? .
/' 14 -A (Goble) Well,. the towns that are to evacuate - . \'
15 all of these recommendations are made on the basis -- I'm 16 sorry -- by towns within zones. Go that if the town is 17 within the five mile ring, then the whole town is evacuated. 18 Q That's fine. 19 Now, with regard to Massachusetts, therefore, if
)
20 your principle is correct, that initial PAR included a 21 recommendation to evacuate Salisbury and Amesbury, correct? 22 A (Goble) That's correct. 23 Q Now, I would like you to tell us again, if you can l 24 by consulting that map, what would the initial PAR -- what 25 should the initial. PAR have been? 1
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GOBLE - REDIRECT 24505
- 1 A (Goble) Okay. I believe that the initial PAR 2 should --
3 Q By " initial", I mean, just so we are clear, the 4 one -- 5 A (Goble) I'm sorry, this is the initial one at the 6 declaration of a general emergency. 7 Q Yes. 8 A (Goble) We're not talking about the precautionary 9 beach PARS which were the set of PARS. 10 Q Yes. 11 A (Goble) Yes. 12 I believe that the initial protective action 13 recommendation should have been to shelter Salisbury, to 14 evacuate Amesbury, and in fact to evacuate -- I think it's 15 close, but I think you could make a good argument, at least, 16 'for evacuating Newbury and Newburyport as well. 17 O It's your view that would have been better than 18 what protective action recommendation was made? 19 A (Goble, That's correct. I 20 Q Better in what sense? i 21 A (Goble) Better in the sense of -- well, of , course, you didn't know what would happen 'in the accident, 22 23 but offering you a better possibility of saving more dose 24 and in fact, as this particular scenario played out, it 25 would have saved more dose. Heritage Reporting Corporation (202) 628-4888
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GOBLE - REDIRECT 24506 1 r~~s 1 Q Now the protective action recommendation that we (
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] 2 are discussing was the one the plan called for, was it not?
3 A (Goble) Well, the plan does not distinguish 4 between eastern and western Massachusetts. So the plan, as 5 its written, it would be impossible for -- maybe I shouldn't 6 say " impossible", but it would be contrary to the plan for 7 the emergency room operators to make different 8 recommendations for Salisbury and Amesbury. 9 So they couldn't have done -- within the ' scope o*f 10 the plan, they could not have made the recommendation that I 11 am recommending. 12 Within the scope of the plan, they could have 13 ordered -- no. ( i 14 Based on the decision criteria in the plan and the 15 reading of the post-LOCA monitor, they plan called for 16 ordering evacuation from zero to five miles. 17 Q The decision to order the evacuation out to five 18 miles was based on, if you know, was based on what factor or i 1 19 factors? 20 A (Goble) It was based on the readings of plant 21 instruments, the current meteorological conditions. 22 O Do you believe that the plan contemplates that the 23 decisionmaker in the circumstances of that accident that was 24 modeled, is it your view that the"decisionmaker had a choice 25 of choosing to evacuate out to two miles, or choosing to
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1 evacuate out to five miles at the time that the first PAR 2 was made? 3 I'm asking for your understanding of how~the plan 4 is structure. 5 A (Goble) Okay. 6 The decision criteria recommend evacuation to five 7 miles. Now, I think in any plan you expect to leave open 8 the possibility that somebody's, good judgment could say 9 these decision criteria don't exactly cover the case. And 10 so that people could override it. 11 But the decision criteria do clearly recommend 12 evacuation to five miles, and then downwind five to 10 13 miles. As I think I indicated earlier, I think you could 14 argue that in the spirit of the plan's recommendation for 15 evacuation downwind five to 10 miles, that it would have 16 been appropriate to evacuate Newbury. 17 JUDGE McCOLLOM: Could we have Dr. Goble tell what 18 those decision criteria were as he understands it? 19 MR. TRAFICONTE: The ones that triggered the zero 20 to five? 21 JUDGE McCOLLOM: And the five to 10. 22 MR. TRAFICONTE: And the five to 10 downwind? 23 JUDGE McCOLLOM: Yes. 24 MR. TRAFICONTEi Sure. 25 1 Heritage Reporting Corporation (202) 628-4888
GOBLE - REDIRECT 24508 1 BY MS. TRAFICONTE: (_ / 2 Q Do you have a section of the plan that you 3 might --
/. A (Goble) I should ask for help from Mr. Dignan, 5 who knows the plans.
6- But'it's implementing procedures,.I think it's 7- 2.5, but somebody can -- 8 JUDGE McCOLLOM: But if you are just.saying_that 9 it is the one specified in the SPMC, that's sufficient. 10 THE WITNESS: (Goble)~ Okay. 11- JUDGE McCOLLOM: I wanted'to make sure that it 12 wasn't -- - 13 THE WITNESS:- (Goble) That's'what I'm; talking 14 about.
'l \-- 15 JUDGE McCOLLOM: All'right.
16 BY MR. TRAFICONTE: 17 Q All right, I want to make sure I understand your 18 testimony. 19 They follow the plan the stack monitors had the 20 reading that indicated an evacuation out to five miles. , . 21 They made that recommendation. And you are sitting here 1 22 telling us that t' hat was a mistake, and perhaps indicates a
- 23 problem in the plan.
1 24 Is that -- . t l l 25 A (Goble) That's right. [ Beritage Reporting Corporation ( , (202) 628-4888 r
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GO9LE - REDIRECT 24509 - j 2 1 It wasn't stack monitors, but -- 2 Q It war the post-LOCA monitors. , 3 A (Goble) Yes. 4 Q~ Now, can you, as concisely as you can, tell us 5 what your basis is after the exercise is over for coming to 6 the conclusion that this protective action recommendation as 7 it was set out in the plan was inappropriate from the point 8 of view of the decisionmaker at the time he made the 9 decision? 10 A (Goble) Okay. The basis for this is -- first of 11 all, a criterion that I'm looking for is what would be a 12 good estimate, given the information at hand, for the l l 13 strategy that would maximize cose savings. 1 l 14 And with that criterion, then4I try to evaluate 15 what kinds of dose savings in a qualitative way, that 16 there's not information enough avail 6ble to do it 17 quantitatively, or rigorously quantitatively, what kinds of 18 dose savings you would expect in the actual accident 19 scenario under these two assumptions of protective response. 20 And also then I ask, well,.how sensitive are my l l l 21 results to variations in these assumptions. You can't , l
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l 22 predict the figure. Given this information, other things i 23 might have happened. l How likely was one to be wrong. 24 So that's the basis. i 25 Q Well, have you done some form of a calculation i I
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1 that tells you_or indicates to you-that had they ordered l
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GOBLE - REDIRECT 24511 - 1 A (Goble) Well, I've done qualitative evaluation 2 in which I look at, since I can't tell how many people are 3 doing what over' exactly what period of time, I look at 4 representative people. I look at their motion as specified 5 in a qualitative way by the evacuation time studies that 6 have been presented, and I say for these representative 7 people were they getting more or less exposed. l 8 I don't try to make this quantitative -- 9 O Are ybu comparing more or less exposed if one 10 protective action was made, the one actually made, as 11 compared to some hypothetical one that you're saying they 12 should have made? 13 A (Goble) That's correct. 14 O That's what you're doing?
- 15 A (Goble) That's what I'm doing.
l 16 Q And you come to the conclusion that had they done 17 what you recommend there would have been more do'se saved? 18 A (Goble) That's right. 19 Q All right. 20 Can you state concisely for us why you are not 21 just going back and second-guessing the decision based on 22 what you now know? . 23 It sounds like it.
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24 MR. DIGNAN: I'll stipulate to it. 25 Heritage Reporting Corporation (202) 628-4888
GO3LE - REDIRECT 24512 1 BY MR. TRAFICONTE: (
\. 2 Q Dr. Goble, do you believe you are just going back 3 and looking with the benefit of hindsight and saying, well, 4 now knowing what I know about what happened, I= bet I could 5 do it better?
6 A (Goble) Well, whenever you-evaluate what was l l 7 shown -- one of the points of an exercise is to illuminate l 8 how well a plan is working, whether or not there are 9 problems'with the plan. 10 The natural starting point for making such an 11 evaluation is to second-guess, right? ?6u say, well, l 12 suppose I had done something else in this situation, would-
. 13 that have been;better. If it would have been better, then i (N 14 you have to ask two questions, okay. \'
15 So the short answer is that I began by second-16 guessing, okay, but that's a legitimate form of inquiry, if l 17 you don't stop there. It's a way of obtaining insight into l . 18 how well a plan is working. 19 Q Let me just stop you there before you go and tell 20 us what else you did. 21 You say that second guessing is a legitimate form 22 of inquiry. Do you see second guessing in this sense as i 23 part of what an exercise is all about? l l 24 A (Goble) Yes,. exactly. 25 Q In what way? l Heritage _ Reporting Corporation
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GOBLE - REDIRECT 24513 . 1 A (Goble) There are several purposes for an 2 exercise. You want people to learn sets of procedures and 3 so on. But one of the purposes of an exercise is to provide
,- 4 a test of the functioning of a plan. And you can identify 5 things that can be wrong with plans.
6 It can turn out that the plan hasn't provided 7 adequate provisions for certain kinds of communication, for 8 the coordination of providing various services. There are 9 lots of things that can be wrong with a plan that you don't g 10 necessarily find out without testing the plan. 11 The same thing can bs true of decision criPana. 12 You can find that what looks simple on paper, and you're 13 trying to make decision criteria, might not be so simp-le or 14 correct when you come to conditions that are closer to a 15 realistic situation. 16 Now, as soon as you become closer to a realistic 17 situation it is also closer to a special case. This is the i 18 tension that you always have between the general and the 19 particular. The general doesn't take into account all the 20 kinds of things that might go wrong. The particular has a l 21 particular set of things that might go wrong. 22 But one of the purposes of an exercise, in my 23 belief, is to identify whether or not a decision criteria
- 24 makes sense. And the first step in saying, well, is this 25 plan making the right decision is to take this exercise that
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l GOBLE - REDIRECT 24514 1 was crafted with a number of objections, not all of which i ( 2 were designed to make it representative of the most likely. 3 accident or whatever. You can't take it as your sole task. 4 But anyway, it was crafted to bs a scenario that 5 had a certain amount of realism built-int'o it. And you ask 6 how well did the decision criteria work'for this case. 7 Q And you've told us that you have gone back and you 8 looked at the recommendations -- protective action-9 recommendations made. You've compared them to some post 10 facto recommendations that you can construct after the fact. 11 And you've said that the ones made are not as good 12 as the ones you can construct after the fact? - 13 A (Goble) That's right. C 14 Q And then I asked you the question: well, isn't t 15 that second-guessing? 16 And you said, well,.yes, that's second-guessing,
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17 and that's what the exercise.is designed in.part to permit 18 as part of the review; correct? 19 A (Goble) That's correct. 20 Q I think you were abe.ut to explain, you have to go < 21 beyond second-guessing in some sense? 22 A' (Goble) That's'right. 23 Q Can you take us beyond second guessing? 24 A (Goble) So-to go beyond second guessing you want 25 to ask whether or not this difference is an artifact of the ) ( Heritage Reporting Corporation
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GOBLE REDIRECT 24515 - 1 very special circumstances of this particular exercise. 2 Whether this was such an -- well, I'm sorry, there are two 3 -- I've gotten ahead of rayswif. There's two questions you 4 need to ask. 5 One is, given what people knew, could they 6 reasonably have anticipated anything like the special 7 circumstances of the exercise or were they, in fact, 8 responding to a broad range of possibilities in which most 9 of the time what they did would have been better. 10 So there's one question: what could people have 11 known et the time? That's one problem with second-guessing. 12 And the second problem with second guessing is it 13 might be that the accident scenario is so specialized that 14 you wouldn't want to plan for it anyway, even if you could 15 have anticipated it. 16 Q Let's just tske the first point first.
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17 You say you ask yourself, what could the decision-18 maker have known. 19 Let me give you a hypothetical and make sure I 20 understand. 21 You are second guessing a decision and you were , 22 able to construct another protective action recommendation, 23 which your calculations tell you would have saved dose over 24 the one actually made. 25 But as you construct or reconstruct the situation Heritage Reporting Corporation
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. 1 f-'s 1 of the dec'ision-maker _you realize that he or'she could_not- )
t . . . 2' have known something that you now know in hindsight. And
\-7 3 that-that something was very important.- It was a key 4 determinant in making.your post facto protective action-recommendations.
'5 6- Do you follow so far?
7 A (Goble) Yes. 8 Q Would you. critique the protective action -i 9 recommendation that was made during'the exercise on that i i 10 basis? ! 11 ~A (Goble) I followed everything, I thought, but I ] 12 don't follow the question. l j l 13 MR. DIGNAN: I'll make an objection. I don't 14 understand the question either. And if the witness doesn't,_ 15 I suggest a new question.- J 16 MR. TRAFICONTE: Well, let me put a new question. ) 17 BY MR. TRAFICONTE: 18 Q Imagine you have~gone back and you have second- . I 19 guessed an exercise and you determined that there was a 20 better protective action recommendation that in retrospect 21 you are sure could have been made. l
'22 You also determined that the decision-maker at the 23 time would have had to have known something that he or she I e 24 did not know and could not have.known in order to have made 25 that recommendation.
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GOBLE - REDIRECT 24518 1 Q They're following the plan? ( 2 A (Goble) They're following the plan. 3 But, in fact, they had -- at the time they made i 4 this rei: commendation they had good reason to fear that a j l 5 significant release of radioactivity was iEminent and they 6 also had information that gave them good reason to believe 7 that within -- that almost any time, certainly, within the 8 next two or three hours, the wind was very likely to be 1
- 1 9' veering towards the south. !
10 So that would have meant that you had a release of 11 radioactivity that would be directed towards Salir: bury and I 12 anticipated arrival time that would be well before most of 13 the population could arrive. 14 And I.would say -- E 15 Q I'm sorry, most of the population could have what? . 16 A (Goble) Before most of the population could have j
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17 been evacuated. 18 And you could, further going on to the discussion' ') 19 of Newburyport, you could say that according to the ideas of 20 the plan -- that'was in the anticipated downwind direction.
. 21 Those people would have'more time to evacuate if you started.
22 them early. And that would have been a good time to start 23 evacuating them. l 24- Q Them being, evacuate the people.of Newburyport? 25 A (Goble) That's correct. (V Heritage Reporting Corporation (202) 628-4888 i
GOBLE - REDIRECT 24519 .
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1 Q And I take it then, but not evacuate the people of 2 Salisbury? 3 A (Goble) That's correct.
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4 Q In fact, you're saying they should have sheltered 5 ' the people in Salisbury? I 6 A (Goble) That's right. 7 Q But, in fact, they evacuated the people in 8 Salisbury? 9 A (Goble) That's right. I 10 0 And they sheltered the people in Newburyport? 11 A (Goble) That's right. 12 Q They did the absolute inverse of what you're 13 telling us they should have done? 14 A (Goble) That's right. 15 Q And you're telling us they knew enough at'the time G, 16 they made the decision to do what you're recommending and 17 not what -- 18 MR. DIGNAN: Your Honor, I usually don't say 19 leading, but when it gets to the point where you're bringing i 20 the horse right up there and sticking its snout in the well, I 21 it's time to call it leading. I 22 And I object to the leading nature of this 23 examination at this point.
- 24 MR. TRAFICONTE: I would defend my leading 25 question.
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GOBLE - REDIRECT 24520' 1- (Laughter)- j i f 2 MR. DIGNAN: Your Hono6 it's a hypothetical 3 horse. 4 MR. TRAFICONTE: There's no question I am leading, -j 5~ Your Honor. And I would defend my leading questions for two 6 reasons. One is expediency. Time being major one. 7 And two is simply, clarity. I think that this is i 8 going to be clearer for all concerned if I'm permitted to 9 lead to an extent. j 10 JUDGE SMITH: I do think you were-having
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11 difficulty getting the concept you were trying to out of the 12 witness. And a certain amount of' leading was necessary to 13 do that. .' l 14 But in view of the objection you should try to 15
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GOBLE - REDIRECT 24521 1 Q Now you recall you vere asked some questions by 2 Mr. Dignan concerning your TMI proposed plan and the use in 3 that plan of what I think Mr. Dignan called in-plant 4 conditions, and a linkage between in plant conditions and 5 protective action recommendations. 6 Do you recall those questions? , 7 A (Goble) Yes, I think Ms. Chan perhaps asked more 8 of them, but maybe Mr. Dignan. I've forgotten. 9 Q It was now so long ago. 10 It's a fact that your TMI proposed plan links in-11 plant conditions and protective action recommendations, 12 correct? 13 A (Goble) Yes. 14 Q And it's a fact, is it not, that the SPMC and the 15 other emergency plans, including the licensee's onsite plan 16 and the New Hampshire plan, in this case also connect 17 protective action recommendations to in-plant conditions, 18 correct? 19 A (Goble) That's correct. 20 Q Are there significant differences between the way 21 in which the TMI proposed plan links recommendations to in- . 22 plant conditions and the way that linkage is set forth here? . )
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GOBLE - REDIRECT 24522
. h~' 1 The specific need in using in-plant conditions is
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\~. 2 to -- I mean, the reason-you want to use in-plant conditions 3 is so you can respond as early as possible, and that's 4' particularly important at Seabrook. And the specific need 5 is to bd able to track in plant conditions with particular 6 problems that you will be faced with for emergency -- for ,
7 choice of protective action for emergency response. 8 And to that end, what you want to do is to 9 associate particular PAR recommendations with in-plant 10 ' conditions that tell you something about probability of 11 accident and something about timing of accident. And those 12 things have not been worked out in detail, it is my belief, 13 for this Seabrook plant.
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14 15 Q Well, does the fact that a reactor has been declared to be in a state of -- let me withdraw that and 16 formulate it more clearly. 17 Is the fact that a site-area emergency has been i 18 declared, as far as you know does that tell the. j l 19 decisionmaker anything about when or if a release might 20 occur? 21 A (Goble) No. The emergency classification levels 22 as they are presently defined are not -- I mean they are 23 good indicators that something is wrong with the plant. j 24 They are not staged indicators in the sense that you could i 25 say the probability of a core melt accident is strongly ; i gs ] g , Heritage Reporting Corporation i N- (202) 628-4888 i I I i l
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1 correlated with the emergency classification level until you 2 get up to a general emergency. 3 When I was testifying with HW. Chan, I think I 4 referred to -- there is an Oak Ridge study which has 5 reviewed over a period of a number of years 6 unusual -- well, all the emergency classifications that have 7 been made over a number of years of unusual events, alerts, 8 and the one or two site-area emergencida that there have t . 9 been. And concluded, based on s review of the probabilistic 10 safety analyses for either those plants or generic plants, 11 that whether or not it was an unusual event or an alert was 12 very poorly correlated with the probability that the 13 accident would proceed to core melt. 14 Q Poorly correlated to whether the accident would 15 proceed? - 16 A (Goble) That's correct. - 17 So you can't really -- what people have not yet 18 done is defined plant indicators that tell you the 19 probability that a serious accident might happen within some
, 20 period of time. And that, it seems to me, is a very
. 1 21 appropriate thing to be done within the context of
- l 22 probabilistic safety analysis as it's now called. ,
23 Q Now I would like to ask you to turn to your 24 testimony, if you have it available, to the bottom of page 25 10, onto the top of page 11. Heritage Reporting Corporation (202) 628-4888
t GOBLE - REDIRECT 24524. 1- And you testify there, and I'm reading the last i
\ 2 sentence on page 10, the carryover sentence, "A substantial
.i 3 portion of them would succeed in leaving the EPZ-before 4 plume arrival. Another substantial portion would not have 5 been able to leave.the beach area before the plume-arrived."
6 - Do you see that? , 7' A (Goble) Yes. J 8 Q And I think Mr. Dignan asked you a series of 9 questions about quantification. i 10 Do you recall those questions? i 11 A (Goble) Yes. l I 12 Q Now it's a fact, I take it, that you can't 13 quantify the numbers of people who were able to succeed in 14 [ leaving and those who were not? ( 15 A (Goble) That's correct. At least I was unable 16 to. 17 Q Do you have a basis for the two statements here? 18 Do you have a basis for saying that a substantial portion 19 would succeed and a substantial portion would not succeed? 20 A (Goble) Yes. The basis is the evacuation time
. 21 estimates for the Salisbury Beach area. And you ask 22 yourself, you could put people sort of in the early wave of 23 evacuees, people who are in the middle, and people who.are 24 towards the end of evacuees, and ask where would they like 25- to be at the time that the plume is passing over. And the
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GOBLE - REDIRECT 24525 1 early wave of people should get out safely ahead. Perhaps a 2 third, perhaps slightly more than a third. 3 A middle group would be overtaken by the plume, 4 and then it's not easy to determine; it depends on where the 5 roads go and exactly how the wind goes -- but would likely 6 travel to some extsat with the plume. 7 And then finally, the later people would be barely 8 getting off the beach before the plume turned up. 9 And the definition of when the plume arrives and 10 what its path was is provided by the METPAC pictures in the 11 attachment. 12 Q All right, moving on, Dr. Goble'. 13 Mr. Dignan asked you a series of questions 14 concerning the fact that your testimony at one point 15 indicates that there were -- actually, your testimony at 16 various points indicates that there were substantial numbers 17 of people who were able to leave the EPZ without getting any 18 dose. 19 Do you recali that testimony? i 20 A (Goble) Well, I'm not sure I know what you are ! 21 alluding to. But there certainly were -- . 22 Q There were substantial -- 23 A (Goble) -- hypothetical -- I mean in this 24 hypothetical scenario people would have succeed, yes. 25 Q People would have succeeded in doing what? Heritage Reporting Corporation - (202) 628-4888
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GOBLE - REDIRECT- 24526- d i f 1 A (Goble) In leaving the EPZ without getting any
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2 dose. ! 3 Q And can you explain to us why that.isn't 4 sufficient for meeting the regulatory standard,.in your 1 ( 5 view? 6 A (Goble) Well, the objective of the plans is -- I 7 mean some of them would have left the zone without getting 8 any dose. But if they stayed put,.they wouldn't have gotten 9 any dose either. 10 The objective of the plans, as I understand them, < 11 is to produce the maximum dose savings that's feasible with 12 the caveats that one can't possibly do a really fine tuning 13 and that, furthermore, you can't always anticipate ' 14 conditions.
- 15 And the argument that I'm making is that:
16 significant dose reduction's were possible through a 17 different strategy for the population as a whole, for 18 selected -- 19 Q Are you -- I'm sorry, go ahead. 20 A (Goble) No, I just -- I mean, taking a viewpoint 21 of what have you done for the population as a whole, .you 22 could have done better for them. You provided more dose 23 savings. 24 Q Now we had a fairly lengthy, perhaps overly i 25 lengthy cross-examination on the two wind shifts that (N Heritage Reporting Corporation . (202) 628-4888 l
GOBLE - REDIRECT 24527 , 1 occurred, or at least we had questions on two of the wind 2 shifts that occurred. 3 Can you state as concisely as possible what your 4 understanding of the two wind shifts were and the PAR 5 consequences that you draw from those two wind shifts? 6 A (Goble) ,Yes. 7 The first wind shift occurred in the afternoon and 8 was a change in wind direction from a wind out of the west 9 to -- well, it was going around a semi-circle and eventually 10 by the end of the afternoon was coming out of the east. 11 Okay, and the implications of that wind shift, 12 which was forecasted, the weather, were for the protective 13 action recommendations that we've been talking about for 14 Salisbury and for Newburyport, in particular, the 15 Massachusetts recommendations. 16 What that wind shift did was take a plume that was 17 headed due east, radioactive material going east across the 18 Seabrook Beach and out to sea, and swung that around with 19 subsequent addition as the plant kept emitting material into ; 20 Massachusetts. ; 21 The second wind shift occurred abruptly as an l
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-~ 1 And at issue there was whether or not the - ,I 2 mean that sent radioactive material across the northeastern 3 New Hampshire portion of the emergency planning zone. That 4 was an area for which a sheltering recommendation had been 5 made when an evacuation recommendation had been made for 6 was, tern New Hampshire.
7 And in my testimony I had suggested it would have 8 been appropriate to evacuate the northeastern portion of New 9 Hampshire as well by late afternoon. 10 .I would say, if you want to compere the level of: 1 11 second guessing that's involved, that the second claim of, 12 mine is a more controversial. claim. 'And I have 13 justification for it. I don'.t retract it, but I think it's-
/ 14 fair to say that it's more controversial.
15 Basically, it's a' question of how do you interpret 16 the weather information that was'available about frontal 17 motion and how likely was a significant wind shift ~around - 18 that far to occur within the time frame that one would bei 19 talking about for evacuation. I 20
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GOBLE - REDIRECT 24529 l' Q When was this weather information ayailable to 2 the decision-makers? 3 A (Goble) Well, the information about frontal 4 motion was available all through the exercise. Basically, 5 what updates of the weather forecasts were showing was a
,6 stalling of the frontal motion.
7 And the real question was: how firmly one should 8 believe that the front was stalled and was going to stayed 9 stalled well into Wednesday morning. 10 And that is a judgment, how do you handle 11 uncertainty. What are the advantages and disadv.antages of 12 sheltering or evacuating. 13 0 Your concern has to do with the New Hampshire 14 Towns of Portsmouth, Rye, New Castle, and Greenland? 15 A (Goble) That's correct. 16 Q You had some questions from Dr. Cole concerning 17 the information made available to these people. 18 Have you reviewed the emergency broadcast messages 19 that New Hampshire broadcast during the exercise? 20 A (Goble) Yes. , 21 This is what I reviewed in preparing my testimony . 22 which is the siren message; well, the voice message which we 23 already had gone over. It simply refers people to the 24 emergency broadcasting system. . 25 New Hampshire issued a news release which was then l I 1 l Heritage Reporting Corporation (202) 628-4888
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GOBLE- REDIRECT 24530 ] 1- the basis for the-emergency. broadcast system message. And.I-t 2 reviewed the set of news. releases from:New Hampshire. ; 3 There'was a simulated. news. conference.at-some. 4 point. There may.have'been'severa'l of them. :And I.-have not' 5 reviewed transcripts of.a news conference.. I don't even'
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6 know whether there were: transcripts.
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7- I reviewed what' messages were'provided to me which 8' were the news releases'from'New Hampshire. The one I chose 9- was the one that gave the most information'for what the-10 beach people . should ' do', which said leave. the' beach.: But 11 other than that, don't worry. 12 Q The'. question I'm putting to you has.to do'..with the-13 northern New Hampshire towns. . 14 Can you direct your' attention to-page 12 of~your j 15 testimony. And at the top do you see the'second line that 16 says: Early in the' day they had'been instructed to 17 shelter."
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18 Do you see that? 19 A (Goble) Yes. 20 Q Do you have any memory of in what. form they were
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21 instructed to shelter? 22 A (Goble)' I think I have 'na attached news release. ,
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23 I'm not -- which includes the definition of " shelter-in- l
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.Q The question is a simpler one: do you have & !
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24531 GOBLE - REDIRECT 1 memory as to how the sheltering recommendation was made to 2 these people? 3 A (Goble) I assume it was made through the 4 emergency broadcast system. 5 Q Your testimony here indicates that it's your view 6 these people were never communicated with again. l l 7- Is that a fair inference from this paragraph? I 8 A (Goble) No, I don't mean that they were -- I l 9 assume that they kept listening to the emergency broadcast 10 system and they kept getting the same message. 11 Q Well, let me put the question to you this way. 12 Your review of the broadcasted materials -- I 13 appreciate they might hear the EBS message the second time. 14 Was there a subsequent EBS message, as far as you know, 15 directed to these people who had sheltered? 16 A (Goble) No. 17 Q Now, would you, in your view, have expected 18 something like that? 19 A (Goble) Yes. 20 You don't tell people to shelter a short time and 21 then just keep telling them to shelter and telling them to . 22 shelter without telling them why and what's happening.
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23 Q Now, you were asked a question by Ms Chan 24 concerning an assumption that you were permitted to make, I . 25 believe, in the question that shielding factors or Heritage Reporting Corporation (202) 628-4888
.-j GOBLE - REDIRECT 24532 j
. l l r~ 1 protection factors from shelter could be upwards of 25 .
I
- 1 2 percent.
3 Do you recall a question like that? 4 A (Goble) Yes. 5 I'think she was -- well, go ahead. 6 Q I think she permitted you to assume that:the 7 shelters in the e.rea would protect from 25 percent of the l 8 dose. 9 And she put the question to you: wouldn't the dose 10 that the people who were in these shelters get, stil1~be l 11 high. . 12 Do you recall that question? 13 A (Goble) Yes. 14 Do you have a view -- do you recall what your O 15 Q answer was? 16 A (Goble) Well, I assume that I said, yes. 17 Q Yes, that the dose would be high? 18 A (Goble) Yes. 19 Q Do you have a view as to whether, given those L 20 assumptions, a high dose from a sheltering PAR could be ; l . j
. 21 compared to the dose one would receive from an evacuation? j
! 22 A (Goble) There are two things. I should say one $ 1
. , )
l 23 other thing about this shielding factor. 24 MR..DIGNAN: I'm going to object to the form of 25 the question for one simple reason. The question that l l , O l j' Beritage Reporting Corporation l (202) 628-4888 j
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GODLE - REDIRECT 24533 . 1 literally la before the witness is: can two doses can be 2 compared? 3 Obviously, the answer is, can two doses always be 4 compared. 5 I think we need more parameters or a higher or 6 lower or something in that question if we're going to have a 7 meaningful answer at this point. 8 HR. TRAFICONTE: Well, let me put a different 1 l 9 question. l 10 BY MR. TRAFICONTE: 11 Q Do you recall Ms. Chan asking you whether the dose 12 that people would get from sheltering would be high? 13 A (Goble) Yes. 14 Q And your answer to her question was that it would 15 be high; correct? 16 A (Goble) Yes. 17 Q Is it your view that the dose from evacuation in J l 1 l 18 certain circumstances can be high? ! l 19 A (Goble) Yes. 20 , I mean the hypothesis already was -- I mean, that 21 was the initial hypothesis. I was then taking 75 percent of 22 something that was high and saying that that was high as 23 well. . 24 . I think you want to ask in reverse order. If I 25 could lead my -- l Heritage Reporting Corporation l (202) 628-4888 1 l C__.____ --
GOBLE - REDIRECT. 24534 t [I 1. (Laughter) 2 HR. DIGNAN: LAnytime you want to go'outside we 3 will carry on.- I'll answer the questions. 4 HR. TRAFICONTE: .You can answer'the. question any
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5 way you want to, I'm going to ask them.. 6 Let me go on to another --- 7 THE WITNESS: .(Goble) Actually, there'is 8 something I want'to say.. There is an :important issue- that I 9 should have mentioned when'Ms. Chan asked me this question, 10 and I would just like to bring it up. Which is to point out 11 that when one is talking about the shielding factors for - 12 whole body dose these are actually a combination of 13 shielding factors.
/' 14 A typical structure will provide substantially.
15 more shielding from groun'd shine than it will from cloud 16 shine.
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17 So the actual nature of the accident is going to 18 affect'what kind of reduction is provided by a shelter. 19 BY HR. TRAFICONTE: 20 Q Well, the .9 shielding factor --
. 21 A (Goble) That is typically a cloud shielding 22 ' factor. And a building with a cloud shielding factor of .9 23 is likely to provida something likeL a .5 or so shielding 24 factor for ground shine. . ,
25 0 Is there a. phrase or a term of art for the r Reritage Reporting Corporation (s (202) 626-4888 l .
GOGLE - REDIRECT 24535 - 1 expression of the ground shine factor of a building? 2 A (Goble) Well, it's a shielding factor; same 3 expression. 4- Q You call it a shielding factor?
^
5 A (Goble) That's right.' 6 For ground shine as' opposed to a shielding factor 7 for cloud shine. 8 Q I see. I 9 A (Goble) And any of the standard references which 10 are used in talking about sheltering will give both figures. 11 Q You're aware, are you not, that the plans at issue 12 here make reference to a .9 shielding factor; correct? l 13 A (Goble) That's correct. 14 And that's because the plans, as they are written, 15 when they are choosing a protective action recommendation, ] l l 16 choosing between evacuation and sheltering only consider 17 cloud shine in the choice. So they put in a shielding 18 factor for cloud shine. They do not calculate the i 19 contribution of ground shine to the dose that someone might l l 20 receive. 21 Q They don't have a shielding factor for ground , 22 shine? 23 A (Goble) They don't have a shielding factor and ' 24- they don't calculate it as an input into the expected dose 25 that they are trying to minimize. Heritage Reporting Corporation (202) 628-4888 L _ _ _ _ _ _ _ _ _ _ _ _ . _
GOBLE - REDIRECT. 24536 1 Q Ground shine is not included'in the doses that are T' s- 2 saved in'these plans?
-3 .A (Goble) They're not included in the calculations 4 that'are used to decide whatlisLthe dose to be minimized or 5 'to be naved. -
6 So your. evaluation, which is the best strategy,_ 7- 'which saves.the most dose, doesn't!take into account ground. 8 shine; Lit on'lyLtakes into account' cloud shine. 9 Now, the strategy'you choose might -- I mean, 10 either strategy you hope will'save some of the'other. But-
. 11 'the two calculations. won't be parallel. You couldr by 12 trying to minimize cloud shine, end'up with greater 13 exposures due to ground shine.
14
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Q How is that possible? . 15 A (Goble) In particular.you might -- if.you usera 16 .9 shielding factor for cloud shine you might erroneously ;
. . l 17 conclude that evacuation was to be preferred to sheltering: l i
18 for a resident population who could achieve ,while they were . I 19 sheltered a substantial reduction in ground' shine. j 20 And by evacuating more quickly, later on perhaps i 21 even by evacuating in an appropriate' direction away from the H 22 ground shine, but certainly by evacuating more.quickly, also 23' have a lower ground shine while evacuating; and;thus, end up 24 with a lower total exposure. 25 Q Is ground -- withdraw that. I L y' seritage Reporting Corporation (202) 628-4888
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GOBLE - REDIRECT 24537 . 1 Is' evacuation the preferred protective action at f 2 'Seabrook because of ground shine and the effects of ground 3 shine?
, 4 And I'm talking about the plans.
5 A (Goble) In the plan? - 6 Q Yes. 7 A (Goble) Well, I wouldn't have said so. And the , 8 reason I wouldn't have said so is because ground shine has j 9 only a minimal appearance within the plan. It's not used in 10 the decision criteria. J 11 So it doesn't look as though ground shine is the 12 basis for choosing evacuation. l 13 O All right. l l 14 Let me make sure I understand. 15 It's your view in reviewing these three plans that 16 if evacuation is preferred over sheltering it doesn't have 17 anything to do with ground shine? 18 A (Goble) In reviewing the, plans, the plans do not 19 in any way indicate that they're constructed the way their 20 constructed because of ground shine. And they give strong 21 indications that they're not, that's not the reason in that l
- 1 I 22 they do establish decision criteria that explicitly -- I'm
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23 sorry, not explicitly -- exclude the do-not-mention ground - 24 shine. 25 Q Dr. Goble, in your view, is ground shine a l 1 i Heritage Reporting Corporation (202) 628-4888
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.1 GOBLE - REDIRECT 24538 1 significant variable that should be considered in emergency (x
2 planning? 3 A (Goble) Yes. 4 ~Q In your view,.does it have a bearing on the 5 comparative efficacy of evacuation and' sheltering?
- 6 A (Goble) Yes.
7 It has a strong bearing in.those situations, which 8 are very rare but they are also the serious situations you 9 ere most concerned about in which a large amount of 10 radioactivity is released. 11 12 13 14 4 15 . 16 17 18 19 20
. 21 22 23 24 .
25 l l g Heritage Reporting Corporation (202) 628-4888
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GOBLE - REDIRECT 24539 1 MR. TRAFICONTE: I have a couple of more questions 2 and I think we will be through. 3 BY MR. TRAFICONTE: 4 Q Are you aware that the NRC has determined 5 gene' rally that one should make protective action 6 recommendations as early as possible based on plant 7 conditions and that the protet;tive action recommendations 8 that one should make is to evacuate the close-in areas 9 around the reactor? 10 A (Goble) Well, I'm not aware of that as a matter i i 11 p of regulatory'olicy. I'm familiar with a document Ms. Chan ] ( 1 12 referred to which is NUREG-1210, which is an instruction ! i 13 manual setting forth what I presume to be the current i
. 14 thinking within the NRC about protective response strategy. i 15 And it does, in a generic way, recommend this 16 approach which incidentally is, in my view, a very sound 17 approach, and one which we also, with modifications, are' !
18 pushing in our Three Mile Island plan. 19 Q So you don't disagree with that basic approach? 20 A (Goble) No. 21 Q Well, do you believe it's applicable to Seabrook? . 22 A (Goble) Well, I believe that the general
. 4 23 discussion within NUREG-1210 is applicable to Seabrook, But 24 . you have to understand the --
25 Q Let me just interrupt. l Heritage Reporting Corporation (202) 628-4888 '
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GOBLE - REDIRECT 24540 1 Setting 1210 aside, whatever 1210 says -- 2 MR. DIGNAN: I don't want him interrupted. 3 MS. CHAN: Would you let him finish that? 4 MR. DIGNAN: I would like to like to hear the 5 finish of that one. - 6 MR. TRAFICONTE: Oh, you got suckered into that 7 one. All right. 8 (Laughter) 9 BY MR. TRAFICONTE: 10 Q Let's hear in great detail about 1210. 11 A (Goble) Now I don't remember exactly where I was 12 going. Okay, about 1210. 13 , MR. DIGNAN: Just roll on. . 14 ,THE WITNESS: (Goble) I'm going to roll on. 16 Okay, what 1210 and the analysis that's gone into 16 1210 says is that if you can evacuate people before the l 17 plume arrives or before most exposure occurs, that's a good i 18 thing. Th,is is a calculation that's based on comparing the l 19 amount of time of exposure with the amount of time it takes 20 people to evacuate.
. 21 Now, in the case of Seabrook the time scale is 22 different from what it is at most nuclear power plants. The 23 evacuation times are significantly longer. And the 24 comparison shifts over for the serious early accidents with 25 which NUREG-1210 is concerned. It's in fact better to
) Heritage Reporting Corporation (202) 628-4888
O GOBLE - REDIRECT 24541 ' 1 shelter people. 2 And NUREG-1210 reflects a general understanding of 3 this by indicating that when evacuation is slowed down, as 4 possibly through impediments to evacuation, that shelter is 5 the preferred strategy. 6 And all of these things are borne out. The 7 Nuclear Regulatory Commission and its contractors have done 8 a substantial amount of modeling, and they calculate that, 9 with typical generic evacuation times you do better over a 10 broad range of serious accidents, evacuating. 11 And I've repeated such runs using NRC models, and 12 that's what I find. And that as the evacuation times get 13 longer, the balance shifts and you are better off 14 sheltering. 15 So I don't want to quarrel with NUREG-1210. But l 16 the idea that you automatically evacuate without a detailed 17 look at the potential timing of an accident does not apply 18 t,o Seabrook. 19 At Seabrook you have to consider the possibility 20 that you might have an early accident and you have to l l 21 prepare for that p,ossibility by being prepared to shelter . 22 the people who are in most danger from it. 23 MR. TURK: Your Honor, may I just note at this 24 point that back in the New Hampshire litigation we also had 25 Dr. Goble's interpretation of NUREG-1210, which at that time Heritage Reporting Corporation (202) 628-4888 l l .
o GOBLE --REDIRECT 24542-I
'1- he admitted was based'on his;own reading of it, he was.
\ 2 unschooled in NUREG-1210. No one'had' explained it to him,,
3 one from the staff.- He had not participated in any FEMA. 4 -courses which used NUREG-1210. 'And we were prepared:at that i 5 time to offer the testimony.of Mr. McKenna, one of the j 6 . principal-offerors.of NUREG-1210, who would have told-the-
'7 Board-that Dr. Goble is simply misinterpreting the document.
- 8. That in fact.NUREG-1210 is applicable'to Seabrook, and the
.9 lengthy evacuation times at Seabrook do not' alter tho' f 10 applicability of.NUREG-1210 and its approach to evacuate a
11- based upon plant conditions as soon-as you have an l l
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12 . indication that you have got a serious accident going on. 13 -Now I don't know if we are'at-a point'now where I. l 14 have to rooffer the McKenna testimony. But the Board may 15 recall that it'was at the Mass AG's insistence back then
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16 that we did not get into M r. McKenna's~ testimony.- They-17 objected to us introducing'it, and they agreed at that time 18 that we would simply delete references to NUREG-1210. I-19 believe it was in the FEMA testimony at--that time. And.also 20 that Dr. Goble's testimony would'not be relied upon.. j
. 21 So, I don't know, Your Honor. I am at a: point ;
i 22 where I am'on the verge of rooffering Mr. McKenna'if Mr. 23 Traficonte intends to submit any findings based upon this-24 witness' interpretation of NUREG-1210. , j 25 JUDGE SMITH: Apparently he's' learned a lot since ! Heritage Reporting Corporation ; (202) 628-4888 ! l
GOBLE - REDIRECT 24543 . New Hampshire. 1 2 MR. TRAFICONTE: Mr. Traficonte has or the witness 3 has?
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l 4 JUDGE SMITH: The witness. l l 5 MR. TURK: Well, if Mr. Traficonte -- l 6 (Laughter) - 7 MR. DIGNAN: Both, probably both. 8 (Laughter) 9 MR. TURK: Your Honor, I guess I have a question 10 then that I would like to have posed to Mr. Traficonte. 11 And that is, does he intend to submit to findings 12 on NUREG-1210. And if so, I may have to put in some 13 rebuttal testimony so we get the record straight finally on 14 what NUREG-1210 says. 15 MR. TRAFICONTE: I'm sure that Mr. Turk is aware 16 that his two witnesses, which we await with anticipation, 17 make reference to 1210. 18 And it's my intention co offer one volume of 1210 19 into evidence, hopefully later today. So I'm not going to 20 say I'm not going to seek findings based on 1210, because I 21 anticipate that if it gets into evidence, I would be seeking , 22 some findings. 23 JUDGE SMITH: I thought we kept 1210 out on 24 another basis, too, in New Hampshire that -- 25 MR. TRAFICONTE: It wasn't a regulatory guide. It Beritage Reporting Corporation (202) 628-4888
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GOBLE - REDIRECT 24544 1
,ew I wasn't a binding regulation. It was a training lesson plan, l
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'V 2 I thought.
3 JUDGE SMITH: Yes. And it was based upon a I don't remember. ! 4 hypothetical -- no, I don't know. S- THE WITNESS: (Goble) Can I say something about { l 6 my memory of what happened in New Hampshire? ] 7 I don't know whether this is helpful or not. But 8 my memory.was that the question you asked me was whether I 1 9 had relied on NUREG-1210 for my testimony. And my answer to 10 that question was that I had not relied on it, but that I 11 had been observing that my testimony was consistent with 1 l l 12 what was stated in NUREG-1210. 13 MR. TRAFICONTE: A few minutes ago I said to the f f3 14 witness, putt.ing aside 1210, and I tried to cut this off so
' \.
' 15 we didn't get into this, and Mr. Dignan wanted him to answer 16 in terms that he himself had provided with --
17 MR. DIGNAN: I'm not complaining. 18 MR. TRAFICONTE: Well, no, I know you're not. I'm i i 19 just indicating that this is not -- I'm not going to agree I l 20 to Mr. Turk's stipulation that I won't seek findings, 21 l
. because I want it in for another purpose. , j l
22 JUDGE SMITH: W e l .1 , the exchange in New Hampahire, l
. 1 23 I think, a great deal of it was just simply compromise. )
24 MR. TRAFICONTE: It may have been. - 1
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25 JUDGE SMITH: And we threw it out of part of Mr. i O \
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.GO2LE - REDIRECT . 24545 -
1 Keller's testimony, too, as a part of that compromise. 2 MR. TRAFICONTE: Yes. ) 3 JUDGE SMITH: And everyone just decided to walk i 4 away from 1210 as a matter of expediency. But apparently i 5 that is not your intention now. 6 MR. TRAFICONTE: Those were the salad days when we a i 1 7 could compromise maybe. I don't know. Things have turned 8 ugly now. 9 (Laughter) 10 MR. DIGNAN: No, they didn't turn. 11 (Laughter) ; 12 JUDGE SMITH: Well, there is no objection. It's 13 just a threat. 14 (Laughter) . i 15 JUDGE SMITH: A duly-noted threat. 16 (Laughter) l l l 17 MR, TRAFICONTE: It's more fun to put questions 18 under a threat than just in the face of an objection. 19 (Laughter)
.i 20 MR. DIGNAN: Go ahead, and ask your question.
21 MR. TRAFICONTE: Let me emphasize again,with my , l 22 hand motion. 23 (Mr. Traficonte makes sweeping gesture with 24 his hand.) 25 (Laughter.) ) l Heritage Reporting Corporation 1 (202) 628-4888 1 i i u___.___
! GOBLE - REDIRECT 24546 1 1 MR. TRAFICONTE: Putting aside 1210 -- 2 HR. DIGNAN: That's a question mark. 3 (Laughter) 4 MR. TURK: Your Honor, I want to mention one thing 5 on the record. 6 The only- reason I agreed not to put the McKenna 7 testimony in was I felt in good faith that since I was 6 representing NRC Staff, which normally does not put in a 9 position on an offsite emergency planning, that I would back 10 away and let FEMA carry their own load. 11 But if we are really going to be looking at NUREG, 12 and I say that with no -- 13 MR. DIGNAN: No ill will. 14 (Laughter) 15 MR. TURK: With no -- 16 NR. DIGNAN: Could have said " water". 17 (Laughter) 18 MR. TURK: Well, they did have a boat in the 19 water. - 20 (Laughter)
. 21 MR. TURK: But I say that with no pejorative 22 intent towards FEMA. It was simply that NRC Staff normally 23 does not put in an offsite emergency planning case.
24 But if the focus of our hearings is going to be 25 NUREG-1210, well, I've got a great witness back home who Heritage Reporting Corporation (202) 628-4888 .
GOBLE - REDIRECT 24547 I wrote the document and who can tell us all what it meant. 2 And if Mr. Traficonte wants to make an issue of it, I'll 3 bring the right witness and we'll have a nice, long 4 exposition of NUREG-1210. 5 6 - 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 . 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 -
GOBLE - REDIRECT 24548 1 MR. TURK: We have testimony ready to go and can l 2 bring that same testimony back, Your Honor. 3 MR. TRAFICONTE: He has made the threat more real, 4 I guess. 5 (Laughter) 6 BY MR. TRAFICONTE: 7 Q Dr. Goble, putting -- 8 MR. DIGNAN: Maybe he will give you a calculation 9 on the probability. And you can take appropriate protective 10 action. 11 (Laughter) 12 BY MR. TRAFICONTE: 13 Q Putting out of your mind and putting aside and 14 putting to the edge of this proceeding 12-10 for the sake of 15 these questions: are you aware of ganeral NRC -- a general 16 NRC viewpoint that in an event of a serious accident 17 prstective action recommendation should be made as soon as 18 possible based on plant conditions. And that the' protective 19 action that should be nude is immediate evacuation out to 20 approximately two miles?
. 21 MR. DIGNAN: I'm going to object for a very simple 22 reason, and if you can point to me where I'm wrong I will 23 withdraw it qstickly.
24 I, don't see where this is redirect. I don't 25 recall getting into this kind of stuff. And I don't recall Heritage Reporting Corporation (202)'628-4888
. GOBLE - REDIRECT 24549 .
1 Ms. Chan getting into this kind of stuff. And I don't 2 recall the Board getting into this kird of stuff. 3 MR. TRAFICONTE: Ms. Chan asked -- I don't have 4- the transcript in front of me, unfortunately. Ms. Chan 5 asked some questions concerning the appropriateness of'-- 6 MR. DIGNAN: She says you're right. I 7 I apologize. I. withdraw the objection. 8 BY MR. TRhEICONTE: 9 Q Do you recall my question? 1 10 , MS. CHAN: I would like the characterization of 11 what it is you think I said, though, that raised the subject l 12 that you are redirecting on. l 13 JUDGE SMITH:- She doesn't acquiesce that it was 14 "that kind of stuff." i 15 MR. TRAFICONTE: That means I'm not right then. 16 MS. CHAN: Well, I raised something, but I'm 17 trying to find out what your question is and whether it's
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18 within the narrow scope that I raised. ! 19 MR DIGNAN: Well, you got the whole question now. 20 BY MR. TRAFICONTE: l 21 Q Dr. Goble -- 1 - 22 JUDGE SMITH: Putting aside. 23 MR. TRAFICONTE: Putting aside. - l 24 , (Laughter) ! 25 Beritage Reporting Corporation l (202) 628-4888
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GOBLE - REDIRECT 24550 . ('s 1 BY MR. TRAFICONTE: '('- } . Do you recall the question, Dr. Goble?
' 2 O 3 Do you particularly recall putting aside 12-10?
4 A (Goble) Do I recall your question or Ms. Chan's. 5 question? 6 Q Yes. Mine, 7 A (Goble) I probably recall the question. 8 But I did not know.-- I mean, I heard a great den 1' 9 of discussion within and without the context of this 10 nameless document, but I do not know of this as a regulatory 11 -- as a general Nuclear Regulatory Commission -- 12 Q Let me give you a hypothetical. 13 Dr. Goble, if it were the viewpoint of the NRC 14 that the appropriate protective action in the event of a-15 serious accident would be made based on plant conditions, as-16 soon as possible, and it would be evacuation out1to two, 17 approximately two miles. If that were the view of the NRC, 18 would that, in your opinion, be the appropriate' protective 19 action decision criteria for the Seabrook plant? 20 JUDGE SMITH: Is that the same as a general , 21' emergency? 22 MR. TRAFICONTE: In conditions of general 23 emergency, yes. I think I described conditions that would 24 constitute a general emergency. . 25 JUDGE SMITH: There's a release imminent? Heritage Reporting- Corporation
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GOGLE - REDIRECT 24551 . 1 MR. TRAFICONTE: Yes. 2 THE WITNESS:. (Goble) So release imminent. 3 Not by itself would it be appropriate because I 4 think there would be the risk which would need evaluation of l 5 an early accident that could occur too soon for people to l l 6 get out. , 1 l 7 BY MR. TRAFICONTE: 8 Q One last set of qcestions, Dr. Goblo, and this 9 concerns release duration. l 10 Mr. Dignan asked you a series of questions about 11 the eight-hour release duration default assumption, which we , 12 were able to track down. i 13 A (Goble) With the help of Mr. Dignan. , 14 Q With the kind help of Mr. Dignan. 15 A (Goble) Yes. 16 (Laughter) l ! 17 MR. TRAFICONTE: Motivated as he was only by the , l l 18 complete kindness of his heart. I 19 BY MR. TRAFICONTE: 20 Q Do you believe the eight-hour default assumption l 21 is thu appropriate one?
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22 A (Goble) I do not believe that it's appropriate to l l 23 have a single eight-hour default assumption. - 24 Q Do you believe having a default assumption for,a l 25 duration is appropri' ate? , i i ('- Heritage Reporting Corporation l (202) 628-4888 ___m______ _ _ _ _ _ _ _ _ _ - _ _ _ _ _
. GOBLE - REDIRECT 24552 1 A (Goble) Not by itself. I think_that -- the
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- s. 2 problem is -- again, it's a question of how you are using. ,
f l 3 this default assumption. And in the context which I refer 4 to it-in my testimony it was being used to choose protective l 1 5 action recommendations. j; 6 Q Let me just: interrupt.you-there. Let me just 7 interrupt you. ; 8 Can you just concisely state what the relationship 9 is between the duration of a release and a protective 10 action? j 11 Why would it be used to choose between those two?.
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1 12 A (Goble) Well, the idea is that if the wind -- if I 13 you have a release of a certain length of time, the wind is ; 14 carrying it in a particular direction. You have somebody in .
)
(\- 15 the path of the release. You can calculate how long he will 16 be in the exposed radiation from this radioactive release; 17 and thus, by multiplying a dose rate times the length of ) 18 time calculate what his exposure would be. I 19 You could* compare such exposures for an evacuating i 20 person who might get out after a certain amount of time. ] 21 And for a sheltered person who might be receiving a certain 22 amount of protection from the shielding of the building; and
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23 thus, decide whether a person would be better sheltering or ! 24 evacuating. 25 Now, the problem with doing the calculation solely 1 Heritage Reporting Corporation .
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GOBLE - REDIRECT 24553 . I with a release duration is that.other things will impact, 2 whether or not people will be exposed. And the one we 3 talked about yesterday was the persistence of the wind 4 direction. If the wind was going to move the plume away 5 before the release has ended, then that will be the limiting 6 time for exposure for somebody who is sitting in one place, 7 rather than the release duration. 8 The other problem with a release duration is that l 9 you may not -- besides not knowing how long the release is 10 going to occur, yca may well not know whether it's going to 11 increase or decrease, shat you're really interested in, in 12 some sense, is the duration of time over which most of the 13 radioactivity would be released and things might gg) off and 14 then down. 15 Release duration all by itself is not a 16 sufficiently informative concept to pin a whole choice of 17 protective action recommendations on. l 18 Q Mr. Dignan indicated I think in two questions to 19 you yesterday that METPAC generates two, four, six and 20 eight-hour dose calculations, I believe. Let me put the 21 question more clearly. , 22 Mr. Dignan asked you a series of questions about 23 METPAC and one of them had to do with the fact that METPAC 24 generates comparative doses for evacuation and sheltering 25 based on two, four, six and eight-hour durations; correct? Heritage Reporting Corporation - (202) 628-4888 -
GOBLE - REDIRECT- 24554
;- :1 A (Goble) That's correct. ,
2 Q And he said to you, look, if we-don't know how 3 long the' release is' going to;1ast, what's wrong with picking 4 the eight-hour release; right?- 5 A (Goble) Yes, he said that. 6 Q Now, can you.tell us why you think it is. wrong to 7 pick the --- first of all, do you believe it's wrong to pick 8 the eight-hour duration as the default in the absence-of-9 knowledge? 10 -A .(Goble) Yes, if you're going to use it to' base; 11 your choice of protective actions.. , 12 Q Do you have another number that you think should 13 function as a default? 14 A (Goble) No ,' I don't. O 15 Q What approach do you believe planners at Seabrook 16 should take with regard to this input? 17 A (Goble) Well, I think it's appropriate to develop 18 a number, but that's work. One should be concerned about 19 persistence of wind. And one should also be concerned 20 about, again, tying it to plant conditions,-.the. expected
. 21 timing of accidents. And timing in severity, mostly what 22 you want to do is, given your ignorance you want'to make the 23 choice that would, on balance, give'you the most protection.
24 Q Why isn't eight-hours,the right one? 25 A (Goble)
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GO2LE - REDIRECT 24555 . I to be the right one. , 2 One reason is that it should be quite rare for the 3 wind to persist for eight-hours at the Seabrook site. 4 That's an area where you expect wind shifts on much shorter 5 time scales most of the time. You might be able to pick out 6 circumstances when you would expect them. But most of the 7 time you won't expect the wind to persist for eight-hours. 8 The second reason is that the accidents that you l 9 are most concerned about, the ones that threaten the most 10 serious radiation exposures, are ones that are expected to 11 have a more serious early -- yes, more serious radiation
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l l 12 exposures, the ones that are expected to have relatively 13 short duration. 14 And again, if you want to say that your plans 15 should be slanted to provide you with the best possible 16 protection in those situations, you ought to be considering i 17 shorter release durations. 18 Q Is the decision-maker option for the eight-hour 1 19 default duration assumption at or near the point when the 20 release begins? ' 21 A (Goble) Well, you don't know when the release - i
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22 begins, although a general emergency says a release is l l . ! 23 imminent, you hope it's not imminent. And the question of -
)
24 how long it might take,before there is a release is an l l 25 important consideration in the evaluation that I'm j i Heritage Reporting Corporation j (202) 628-4888 ;
l 1
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GOBLE - REDIRECT 24556 1 suggesting. 2 It would require a certain amount of analysis to 3 conclude what's appropriate. I mean, the time that you 4 would take for making an evaluation -- you would like to 5 make the evaluation as early as possible. And you could 6 hope that maybe the release wasn't going to start. The 7 release starting time is important as well as the release 8 duration. 9 Q I appreciate that the release starting time is 10 important. I'm still asking you questions, however, 11 concerning the duration. 12 Is the duration -- 13 A (Goble) Duration is defined from the beginning of 14 release. 15 0 Yes, I understand that. 16 A (Goble) That's the definition. 17 O The focus of my question is: at what time must the 18 decision-maker opt for a duration default value? At what 19 time in the sequence. l 20 And the question was: does that or can that occur l 21 prior to the release beginning? 22 A (Goble) Yes. 23 Q Yes. 24 At that point is there uncertainty in your view as 25 to how long the release could last? Heritage Reporting Corporation
'(202) 628-4888
GOBLE - REDIRECT' 24557 1 A (Goble) Yes. 2 Q Yes. l 3 Are you aware of what.NUREG-0654 says concerning 1 1 4 the range of possible accident release durations? l 5 A (Goble) I'm not sure I can quote it exactly, but, l 6 yes, I'm aware of it. It's anywhere from an hour or less to 7 24-hours or longer. The range is a very broad range. l 8 Q It's a broad range. 9 Is it your understanding from anything that you l 10 know that eight-hours is technically -- does eight-hours 11 reflect anything with regard to the technical analysis of 12 accidents? 13 A (Goble) I know of no analysis that was done for 14 choosing eight-hours. 15 16 17 18
)
19 20 21 , , 22 23 24 l 25 Heritage Reporting Corporation (202) 628-4888
GOBLE - REDIRECT 24558 3 1 ,Q What would the' impact be on protective action 'd 2 decisions if a shorter durhtion-were chosen? ; 3 A (Goble) In general, a shorter duration makes.it 4 more likely that you.would choose sheltering than. evacuation 'l 1 5 in the circumstances at Seabrook.- 6 ,Q 'Why is that? 7 A (Goble) .Oh, because the longer the release, the 8 greater -- I mean, suppose you are assuming that you have a. i 9 release occurring at a constant rate, which is the 10 assumption that's built into these calculations that are
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11 based on re1 ease duration. The longer the. release occurs, 12 themoreoftl$eexposurethatyouwillhavewill-happen 13 beyond the time it takes for people to evacuate. j 14 So if it takes people six hours to evacuate, you 15 have an eight-hour duration release, you have -- there is 16 two hours in which people can be, in -simple terms -- 17 forgetting arrival times and stuff. There is two hours in 18 which people won't be exposed -- who evacuated -- won't be , 19 expoaed to the plume. 20 , MR. TRAFICONTE: Your Honor, if I could just have
. 21 a moment, I think that's all I have'on redirect at this 22 point. I just want to chetk'my notes, though.
23 (Pause.) 24, MR. TRAFICONTE: I don't have anything further, 25 Your Honor. Heritage Reporting Corporation ( (202) 628-4888
GOBLE - RECROSS 24559
- 1, JUDGE SMITH: Do you have recross?
2 MR. DIGNAN: Yes, Your Honor. 3 RECROSS-EXAMINATION 4 BY MR. DIGNAN: 5 Q Doctor, in your examination by counsai for the 6' Commonwealth you were directed to Salisbury Beach and you 7 gave a dissertation in which you indicated you couldn't 8 quantify things, but you.were, as I heard it, saying 9 approximately a third of the people would have gotten off 10 the beach with no exposure. You viewed a third as picking 11 , up and another third picking up even more. 12 Is that essentially correct? 13 A (Goble) Yes. I mean I don't want to say a third. 14 0 I understand it wasn't precise. I just wanted to 15 be sure if we're in the right ball park. 16 A (Goble) But the idea was numbers that were 17 comparable in magnitude. 18 Q All right. 19 Now you said that you had done a qualitative 20 calculation on this based on the ETEs involved? 21 A (Goble) Yes.
.]
i 22 Q Where did you find the ETE for the Salisbury Beach l 1 23 area as such? I 24 A (Goble) Okay. The first -- 25 O I'll be candid with you, Doctor. I know of none. j Heritage Reporting Corporation (202) 628-4888 4
g .. 1: l I 24560 l GOBLE - RECROSS l ,. l 1 Now I'm asking you=where you got yours. 1 k -2 A (Goble) Okay. The first. thing I should say is ; l 3- that the ETEs.-- I'm sorry. That the' calculation is not 1 4 . very sensitive.to ETEs because-I'm making a qualitative l 5 judgment that'there have -- I 6 Q Doctor, I think you missed the thrust of my l 7.. question. Let me state it once more precisely. 8 I heard,you tell us that this qualitative 1 9 calculation had resulted in part fram your use of an ETE. 10 And my question to you is: Where'did youofind an ETE for_ 11 the Salisbury Beach area to use? . 12 A (Goble) Oh, all right. l 13 Q And I'm being' candid with you,;I don't.know of any 14 such ETE. And, indeed, one of the Commonwealth is we don't
\
15 have one of those. 16 So where did you get one to make this calculation 17 with? 18 A (Goble) Okay. 19 What I used, all right, and perhaps I should have 20 identified it better, is a ball park figure that is taken
. 21 from the many arguments that we've had about evacuation time 22 estimate.
23 Q So you didn't use an ETE. You used a ball park-24 figure that'you derived from something else; is that'right? 25 A (Goble) That's right. Beritage Reporting Corporation (202) 628-4888. _.m_m.________ _ _ _ _ _ - _ _ _ _ _ _ am . rh-
GOBLE - RECROSS 24561 1 Q Okay. 2 Now, the second thing is this third-a third-a 3 third as I heard it assumes,' and I won't say assumes, but 4 it's based on a concept that's sort of there was a uniform 5 stream of evacuees going off that beach. 6 Is that correct? Uniform in rate. 7 A (Goble) Well, yes. It's actually -- I assume,
. 8 and this I have based on --
9 Q I didn't ask you what it's based on. 10 - Am I right that you are assuming a constant rate 11 of egress from that beach? . 12 A (Goble) Well, what I've considered is a range 13 between a constant rate of egress and assuming that there 14 are bottlenecks, that there is s' bottleneck of the 15 intersection -- now I've forgotten -- of Route 16 (Witness turns to map.) 17 It's not on the map.
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18 Q Okay. 19 A (Goble) Anyway, there is -- ' 20 0 A bottleneck down the road somewhere. 21 A (Goble) There is a Salisbury Beach bottleneck. , 22 Q Okay. , 23 A (Goble) And that actually keeps people on the 24 be*ach a longer period of time. And then once they -- i l 25 Q Well, does it keep them on the beach in their car? I Beritage Reporting Corporation (202) 628-4888
GOBLE - RECROSS 24562 1 A (Goble) I'm sorry.' InLtheir car-in the Salisbury-7-+g
\m-
- 2 Beach area, ~ not on the beach. - In their car.in the Salisbury 3 Beach areaLfor a longer period of time before'-- so that the
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4 flow is uniform'through.the bottleneck,Lbut not uniform 5 .through the region. . 6 Q. Now, Doctor, when in this scenario, if you recall, 7 was the precautionary-beach closing for Salisbury Beach 8 directed? 9 A, (Goble) 'Okay. I don't recall, but -- 10 Q Would you accept my representation it was.at the 11 site area emergency at'12:25 p.m.?. 12 Are you willing to accept that representation or 13 do you want to check it? 14 A (Goble) No , I'll accept it. 15 Was that the time that it was notified? 16 Q Right. - 17 A (Goble) Okay. 18 Q .Now the evacuation wasn't ordered until 2:20 at 1 19 the general emergency, isn't that right, 1420 if we're using i f 20 a 24-hour clock?
.. 21 A (Goble) -
The evacuation of -- 3
. l 22 Q The five mile radius.
]
. l 23 A (Goble) That's right. ;
I i 24 Q Now keeping in mind that you yourself. acknowledge i 25 on page 14 in your teetimony that precautionary beach ! I i ! l f- s Heritage Reporting t ) Corporation 1\./ (202) 628-4888 i l
GOBLE - RECROSS 24563 - 1 closings are utilized to reduce the evacuation' times for the 2 EPZ residents. 3 How did you factor in the fact that the beach 4 people got a two hour head start in deciding that it had 5 been caught at a uniform rate of a third-a third-a third? 6 A (Goble) The way I factored it in was -- 7 Q Did you factor it in? 8 A (Goble) Well, I did factor it in, which was to 9 assume exactly what you said. That they had a two hour head 10 start, so that -- 11 Q Before the traffic jam, right? 12 A (Goble) Well, they created their traffic jam. 13 However, that tra'ffic jam -- my understanding of these model s 14 results, that traffic jam is most acute at the beach 15 bottleneck. So the traffic jam is primarily a beach traffic 16 jam. 17 But things would have been pretty slow afterwards, , 18 and I assumed that ,they had -- those cars were going through 19 with a two hour lead time. That's exactly what I assume. 20 And then the rest of the traffic jam joined in two hours 21 later. , 22 Q And when did the release get there? 23 A (Goble) The release got there -- well, it's been 24 awhile since I wrote this, but we can look at this exhibit. 25 (Witness reviews document.) Heritage Reporting Corporation (202) 628-4888 ,
A
'24564.
GO2LE - RECROSS-1 THE. WITNESS:- (Goble), Itfshould be in round-2 numbers. Four o' clock, maybe:a little bit before. . 3 BY MR. DIGNAN:
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4 Q Okay, 4:00. t i 5 So as~I understand-then-the thrust';of your-testimony,. after'the beach closing,?a total of three and a1
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6 71 half hours laterLonly one-third of the beachgoers had gotten 8 clear; is that right?- 9
- They are the.ones.that' escaped the. plume, andLtwo-10 thirds were still caught within.the plumet is that right?-
11 . 12 13 14 15 16 . 17 18 19 20 l
.- 21 22 23 l 24 l
l 25~
'l o ,
.eet..e .e.o.m., _r.m.n (202) 628-4888.
I l
GOBLE - RECROSS 24565 1 A (Goble) That's not what - I'm saying. 2 Remember, the plume is a moving object. . 3 Q I understand that, Doctor.
. 4 A (Goble) What I'm saying is, at 4 o' clock, let us 5 say, which is three and a half hours later --
6 Q Two-thirds of the people were still in the area 7 where the plume -- 8 A (Goble) I'm assuming -- in fact, what I assume is 9 that roughly a third of the people are still within the 10 beach area. That the remaining two-thirds are divided 11 between those who -got out at the head of the line in advance 12 of people evacuating from Salisbury environs. And the 13 remaining, the middle group of people are mingled in. 14 And at this point -- this is the point at which 15 the plume is starting to pass over the beach while that last 16 third, in round numbers of people, is stuck there, so the 17 plume gets past them. Their only exposure is while they are 18 stuck there. 19 The plume passes over the people, this middle 20 group of people mingled in with the evacuating group. So 21 that you are traveling to some extent with the plume, and it , 22 never catches up to the first ones who got out. 23 That's the basis of the calculation -- 1 24 Q And when you did your calculation you tell us here 25 today you did, in fact, factor in the two-hour head start? ! l 1 Beritage Reporting Corporation (202) 628-4808
- - _ _ _ _ - = -_. _ _ _
1 I GO2LE - RECROSS . 24566 j
.- 1 1 A (Goble) -Yes.
'\' In exactly the fashion that I'm' describing. l 2
3 O' On this default matter again, which has probably 4 been -- did I hear you correctly say'that, never mind the 5 extent to one uses it, but a parameter that, one, a 6 decision-maker has to consider is the expected duration of 7 the release as he makes E protective action recommendation. 8 Is that true? 9 A (Goble) .Yes. 10 Q Now, if we assume that to be a fact.- And we also 11 assume.that in an EOC that decision-maker turns to the 12 appropriate individual and says, ask the plant what their j 13 expectation is. , ( ('
. 14 And I ask you to assume with me.in my hypothetical 5
15 that what comes back from the plant is,.tell the blankity 16 EOC we got a problem on our hands here, we have no idea'how 17 long it's going to take to control this release, we can give I 18 them no solid numbers as to the duration of the release and i 1 19 they're just going to have to live with that. 20 Now, at that point, doesn't that decision-maker at '
. 21 least have to plug some default value into his thinking? l i'
22 A (Goble) Yes.
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j 23 Q And what' he will do'if he plugs in, let us say 24 eight-hours, is factor that in.with.other things such as, 25 you pointed out, wind shifts that'he may expect; isn't that
.( Heritage Reporting Corporation N~ / (202) 628-4888
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. arb . ---m...
i O
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GOBLE - RECROSS 24567 . l
. i 1 correct? !
2 A (Goble) Well, I don't know that he will. 3 That's -- what I -- 4 Q I'm putting you in there? 5 A (Goble) Yes. . 6 Q okay. 7 You would factor that in. Now, if you understood 8 the wind to be blowing towards the west -- I'm just picking 9 west out of a hat -- and you expect a shift to the south in 10 four-hours, you would then to do your calculation, if you l 11 use that default value, you would calculate the four-hours 12 it blows west, there is going to be a dose, because you know 13 there's going to be a continued; release. And then, 14 thereafter, the people to the south -are going to pick up a 15 dose for four-hours. 16 Isn't that the calculation you would make because 17 you're assuming eight-hours? 18 In other words, the release will still be going 19 after the wind shift that you are expectingt and that's the 20 calculation -- 21 A (Goble) Furthermore, the release material will , 22 take its rather peculiar path which will include going -- 23 Q That's the way you will use this default value? 24 A (Goble) That's the way in which I should use this 25 default value, because I have to act -- I mean, not only are Heritage Reporting Corporation < (202) 628-4888
GOBLE - RECROSS 24568 1 the plant people working very hard to get the blankity thing 2 under control, but I have ,a lot of problems at the time, 3 too. 4 Q And that's the purpose of the default value. 5 Now, keeping that in mind, with all deference, 6 what difference does it make whether it's eight-hours or 7 four-hours that you assume? Because what has really 8 happened in our hypothetical is the wind shift is dictating 9 what you do, not the duration of release; isn't that 10 correct? 11 A (Goble) In this hypothetical -- 12 Q Yes. . 13 A (Goble) -- that is correct. 14 And I have r.o quarrel with your posing of that G 15 except to say -- 16 Q Now -- 17
- MR. TRAFICONTE: Let him finish.
18 MR. DIGNAN: I'm trying very hard, Your Honor, to 19 ask questions that I honestly believe can be handled with an 20 affirmative or negative answer because I'm aware of the 21 hour. 22 I didn't ask for any discussion. I ask that we 23 concur on that. 24 MR. TRAFICONTE: Nell, we're just going to have ) j 25 redirect, Your Honor. 9 Heritage Reporting Corporation (202) 628-4888
- GOBLE - RECROSS 24569 .
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1 MR. DIGNAN: Fine. Good. 2 BY MR. pIGNAN: 3 Q Now, the next question I'm going to ask you is, 4 let us assdme in our same hypothetical, Doctor, that instead 5 you used a' default of two-hours, a shorter time, all right? 6 Now if, in fact, that release lasts longer, a day, 7 what you would do as a decision-maker, as I understand it, 8 is say I'm assuming a two-hour release, the wind is going to 9 stay steady to the west for four-hours, I know that, so I 10 will evacuate to the west and I will do nothing to the 11 south, because I know the release is going to be over by 12 then. . 13 Isn't that the logical decision you would make if 14 you would assume the two-hours? 15 A (Goble) Well, I can't do that at Seabrook because 16 . of the problem of evacuacion time. If I assume it's --
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17 Q No, no. 18 A (Goble) -- two-hours, I can't afford to evacuate. , 19 Q Forget Seabrook. Forget Seabrook, Doctor. 20 A (Goble) All right. 21 Q I'm saying, if you assume that shorter release
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22 time that you say should be the default in this situation- ! 23 where we have no idea, the plant is telling us they don't - l 24 'know, for all they know it could be this 24-hour release l 25 that IrmREG-0654 refers to. Heritage Reporting Corporation (202) 628-4888 '
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GOBLE - RECROSS . 24570 ! I
- 1 If you assume _that shorter release time and your
' information is wind to the west for four-hours, then a shift A 2 3 to the south. What you would do is evacuate the west.
4 because you know you're going to get a dose ' for two-hours, 5 and then say to yourself, at the end of two-hours I have no 6 further release so I need to do nothing with the south. 7 And, in fact, if that release lasts for 24-hours i 8 you're wrong; correct? 9 A (Goble) I'm certainly wrong if it lasts for 24-10 hours. Now, the evacuation -- J l 11 Q All I'm getting'at is, isn't the more conservative i
'I 12 thing, given this little hypothetical -- and Mr. Traficonte 13 and I,can argue later as to its relevance generally --
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<~' 14 doesn't this illustrate that at least.in this-hypothetical; N 15 situation that-I have given you the conservative thing for 16 the decision-maker to do is to assume eight-hours; and 17 indeed, a more conservative' thing would be to go out and 18 assume 24-hours.
19 A (Goble) It's not more conservative. 20 And I don't want_to give a long-winded answer but
. 21 I have to explain a couple of considerate,ons.
22 First of all, at Seabrook we're not talking
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23 necessarily about a choice between evacuation and doing i 24 nothing. We're talking about a choice between evacuation 25 and sheltering. [m Heritage Reporting Corporation
\.)) (202) 628-4888
GOBLE - RECROSS 24571 1 JUDGE SMITH: So you didn't agree with his premise 2 that they would evacuate under that -- 3 TM WITNESS: .(Goble) That's corcect.
;- 4 I don't agree with his premise. All right.
5 BY MR. DIGNAN: 6 Q Are we going to shelter instead of evacuate? 7 A (Goble) Very likely if you' re expecting a two-8 hour release and -- 9 Q Now the release turns out to be one day, what
'/
, f. 10 happens? We got a problem, don't we. There's a whole bunch 11 of people in the shelter. A .9 dose factor. So they're 12 taking 90 percent of the dose from two-hours. Now what do 13 we do with them? A 14 A (Goble) Well, you've got a problem. But on the 15 other hand -- 16 (Laughter) 17 THE WITNESS: (Goble) I mean a nuclear accident 10 is a problem. I'm not trying to minimize. 19 BY MR. DIrMAN: 20 Q I'm just trying to make it less of a problem, 21 Doctor. , 22 A (Goble) What I'm saying is -- l 23 Q Finish up and then we'll go on. 24 A (Goble) There are two issues of conservatism. 25 One is the issue at which the question of whether or not you Heritage Reporting Corporation (202) 628-4888-
l J GOBLE - RECROSS 24572 )
- 1 choose evacuation'or sheltering. You can say, yes, you have
(_ , 2 a problem this way. I explained the, problem when you 3 evacuate people into the middle of the plume when you could i
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4 have been. sheltering them. . These concerns become more severe the more severe 5 6 the accidents; that's when it is most important. And there H 7 are a couple of topics at issue. One is that the rate of- ] i 8 release:in a very serious accidentLis related to release 'l 9 duration. i 10 If you were to have a really big accident in which I 11 .a substantial fraction of the core came out it-makes a big 12 difference anyway, whether or not that fraction of the core . 13 comes out in two-hours or whether it comes out in eight or-jg 14 in 24, to take Mr. Dignan's example.
%- 15 And in particular, if it comes out in'two rather f l
16
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than eight you have people exposed to dose rates.that are l 9 l 17 four times as great early on. l 18 The issue of whether or not they should be j 19 sheltered rather than evacuated is much more-acute. l 1 l 20 And, in fact, it is a complicated calculation, l . 21 which is the more conservative decision. 22 In my view, to choose on the basis of eight-hours 1 . 1 l 23 is not likely to prove to be the most conservative decision I l l l 24 for.the potential of going into one of these severe j i 25 accidents. 1 i i
;g Heritage Reporting Corporation l 1N (202) 628-4888 l 1
i i i
GOLE - RECROSS 24573 .
)
1 Q And that is true in the hypothetical I gave you 2 where what this decision-maker is being told -- remember 3 what I said the plant told them, tell the blank'n EOC'we got ] 1 4 no idea: (a) how we're going to control.iti (b) when we're j 5 going to get it under control; and, (c) when we do what the i 6 fix is. 7 That's what that decision-maker has just been 1 8 told. He has no basis for determining a duration. He is f 9 told -- for all he knows that duration is going to go to j 10 infinity from what he is hearing from the plant. 11 A (Goble) It can't go to infinity if the release 12 rate is going to be something like -- 13 0 I know that, Doctor. I'm saying - . I 14 A (Goble) A tenth of a core -- 15 Q I'm saying he is told that the best people at the 16 plant can't tell him how long it is. 17 A (Goble) I know. 18 JUDGE SMITH: But you're overlooking his l 19 frequently stated observation now that bad accidents have a 20 fast release and short duration. And it's not conservative 21 to -- , 22 MR. DIGNAN: I didn't say bad accident. 23 JUDGE SMITH: That's his premise. 24 MR. DIGNAN: I didn't say bad accident. 25 I said, the only thing he has been told on release Beritage Reporting Corporation (202) 628-4888 w_ ____
, GOBLE - RECROSS 24574 1 is the plant cannot tell him when they're going to stop it.
2 JUDGE SMITH: Right. 3 MR. DIGNAN: And keep in mind, Your Honor, and I 4 know I'm testing your patience because you evidence, shall I 5 say, some frustration with me on pursuing this point. But 6 I'm pursuing it for a reason. 7 What is being overlooked in this examination by 8 this witness and Mt. Traficonte is what that procedure says. 9 They go to that default value only when they have no other 30 basis to pick a duration. 11 JUDGE SMITH: Well, he understands that. 12 MR. DIGNAN: And that means to me that what they 13 have just been told by the plant is, the plant can't tell 14 them anything. 9 15 JUDGE SMITH: Right. 16 MR. DIGNAN: And I am testing whether it is then 17 conservative to assume some short time. 18 JUDGE SMITH: But all I'm suggesting to you is 19 that you work in his premises, too. And that is that 20 everything being unknown, the likelihood is it's going to be 21 a relea,se of short duration. 22 MR. DIGNAN: No, no. What will be known is the
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23 release rate, Your Honor. That will be known. j 24 JUDGE SMITH: See, that's the thing where I don't j 25 think you have a meeting of the minds there, because he has 9 Heritage Reporting (202) 628-4888 Corporation
i e I GOBLE - RECROSS 24575 1
. i 1 often said it's going to be short notice emd relatively -
2 short duration on the bad type of accident that they want to 3 litigate. 4 ; l 5 ) 6 7 8 l 9 1 l l l l 10 J 11 ) 12 13 14 15 l 16 l l 17 l l 18 19 i 20 21 , 22 23 ,. 24 l. 25 Heritage Reporting Corporation (202) 628-4888 -
GOBLE - RECROSS 24576 1 JUDGE SMITH: We have an unusual accident here. 2 It starts fast and it ends fast. We are litigating -- 3 HR. DIGNAN: Oh, okay, if that's the premise -- 4 MR. TRAFICONTE: No , no, no. 1 5 JUDGE SMITH: That's it. It's a biggie, and it 6 starts fast and it ends fast. . 7 MR. DIGNAN: Your Honor, if the stipulation is 8 that the only accident we're talking about -- \ 9 MR. TRAFICONTE: No. 10 MR. DIGNAN: -- is the one that starts and ends 11 fast, I will back right off the subject. But I don't think 12 they mean that. Because if it starts fast and ends fast, we 13 all know what the solution is. 14 JUDGE SMITH: That's what he said. 15 THE WITifESS: (Goble) Okar
,m No.
16 BY MR. DIGNAN:
- 17 Q Was Chernobyl a minor accident?
18 MR. TRAFICONTE: Wait, let's -- 19 JUDGE SMITH: Wait a minute, now. Wait, wait. 20 (Discussion off the record.)
. 21 JUDGE SMITH: I think he needs a question or an 22 opportunity to explain.
23 MR. DIGNAN: All right, let me start with a 24 question. I 25 9 Beritage Reporting Corporation (202) 628-4888
GOTLE - RECROSS 24577 - 1 BY MR, DIGNAN: . 2 Q Doctor, how long did a release go on at Chernobyl, 3 which was a pretty bad accident? 4 A (Goble) Okay. The release in various forms went 5 on for several days. 6 Q Okay. . 7 A (Goble) And illustrates, incidentally, one point 8 which is that the release was not constant for much of the 9 time, and in particular for the time when you had.large 10 releases. 11 Q All right, now, just to put to rest one thing. You 12 aren't confining this story, as I understand it, to 13 accidents that are big but over fast? 14 A (Goble) I'm not confining the story to accidents 15 that are big and over fast. But I have to say something 16 that's not that far from this: 17 I feel that unless such accidents can be ruled 18 out, I believe that it's prudent to let those accidents, to 19 a considerable extent, drive your choice of protective 20 action. 21 Q All right. 22 JUDGE SMITH: And that's why you attack the eight 23 hour default? ,. l 24 THE tilTNESS: (Goble) That's right'. 25 f Now if part of what -- ' Heritage Reporting Corporation ; (202) 628-4888 _ _ _ _ _ _ _ --_-- _ _ - - - _ . - i
'* 24578 GOBLE - RECROSS 1 MR. DIGNAN:' Wait a minute, no, no, no. I get'to h-~ \ 2 ask'the questions.
3 THE WITNESS: (Goble) -Okay. 4 BY MR. DIGNAN: 5 Q So.what your theory is, is that'what should drive 6 the planning basis is that we should prepare for or at least 7 emphasize in our preparation that portion of the spectrum'of 8 accidents that you would define as severe, fast breaking and 9 fast ending. 10 Is that correct? 11 A (Goble) That's correct, and for the. reasons that-12 the overall objectives of the plans should be to maximize 13 dose savings. r"s 14 Q And if it be that planning that way would increase 15 doses in other situations wh1ch did not meet your 16 parameters, you still would drive the plan on the basis that 17 that is the type of accident to concentrate on? 18 JUDGE SMITH: That's not fair. This is a default 19 where.you don't know. 20 MR. DIGNAN: Your Honor, with all deference, could 21 I ask the technical Board members to rule on that? 22 JUDGE SMITH: All right. 23 (Laughter) 24 MR. DIGNAN: Could I, please? 25 JUDGE SMITH: Sure. -[ Heritage Reporting' Corporation .
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GOBLE - RECROSS 245i9 . 1 MR. DIGNAN: I say that with greatest of deference 2 because I, too, am a lawyer. 3 JUDGE SMITH: Fine. 4 MR. DIGNAN: But I would like to see if the 5 technical Board members agree with that ruling. And if they 6 do, I will desist. 7 JUDGE SMITH: Would you read the question back? l 8 (Accordingly, the pending question was played 9 back by the court reporter.) 10 JUDGE SMITH: They have overruled me. l l 11 I still maintain, however, that the question 12 doesn't elicit the information you want. But they agree, ! i' l 13 they believe that it does, and that's it. I mean that's 14 fine. 15 (Laughter) O' l 16 MR. DIGNAN: Your Honor, I want to explain J l 17 something. I asked for that ruling with great deference and 18 I hope you understand that, because I operate as you do in i 19 this field with a legal background, not a technical one. , 20 And it took me a long time, frankly -- 21 JUDGE SMITH: I'll tell you, if you and I can't 22 understand this question and answer, then we are going to be 23 in big trouble at decision time.
- 24 MR. DIGNAN: I agree. And that's why I -- I'm not 25 sitting here saying, good, I got the ruling. Here I go.
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GOBLE RECROSS 24580 1 I'm trying to explain to Your Honor it took me a f-s {~ 2 long time with my technical' people to understand, frankly,. 3 shy I'm asking these questions. 4 JUDGE SMITH:. I understand why you are asking the 5 question. 6 MR. DIGNAN: Okay. 7 JUDGE SMITH:- I understand what.the issue is. I' 8 believe I have explained it to the' satisfaction of my 9 technical members.. I understand that he is going, in your 10 hypothetical he is going to allow the expectation of a short 11 accident to drive the decisionmaking when indeed there can 12 very well be a long accident,;and.he will take the 13 consequences of that. , 14 MR DIGNAN: That's part of what I was doing., w 15 JUDGE SMITH: All right. 16 ' MR. DIGNAN: I was beyond that at this-point.- And 17 what I was trying to drive home, and let~me try to rephrase 18 the question. 19 JUDGE SMITH: No, you don't have to. You won. 20 Now you've still got time, you won.
. 21 MR. DIGNAN: Those are called empiric victories.
22 (Laughter) 23 JUDGE SMITH: I really wish you would just move j 24 along. 25 MR..DIGNAN: I've never been thrilled with a
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I i GOBLE - RECROSS 24581 *
. i 1 ruling that I got from the associate justices when, you 2 know, the chief is mad.
3 (Laughter) 1 4 JUDGE SMITH: There was no nay that I could have q 5 come out on top with this one. 6 (Laughter) 1 7 JUDGE SMITH: You didn't like the way I ruled, and 8 now you don't like it that you prevailed and there's nothing 9 that I can do -- 10 (Laughter) l l 11 JUDGE SMITH: There is nothing that I can do to l 12 make you happy this afternoon. 13 (Laughter) 14 JUDGE SMITH: Which is all right, ,because that's 15 not my -- l l 16 (Laughter) l 17 BY MR. DIGNAN: 18 Q Okay, now, Doctor, I'm going to try the same 19 question and I may miss it, because my guess is you have
]
20 forgotten the question by now, or have you? 21 A (Goble) Well, I think I remember. . I 22 Q All right, then, take a crack at it. l
.- l 23 A (Goble) Okay. I 24 I think you asked me whether in this hypothetical l
25 situation -- l Heritage Reporting Corporation (202) 628-4888 I l _ - - - - - - - - - - - - l
GO!LE'-RECkOSS 24582-1 Q No. If you're saying that, you don't. remember.the
'( Let me try it again.
2 question. 3 If I heard you correctly,-you told us.that you 4 thought what ought to drive the planning, the planning -- 5 now we're off the hypothetical -- is-a concern about these 6 accidents which had those three parameters: severe, fast 7 breaking and fast ending. 8- Did I hear.you correct? , 9 A. (Goble) Yes. The -- yes, - 10 Q. Okay. 11 And my question to you'is this -- 12 A (Goble) The fast ending was an empirical 13 corollary I just want to say. 14 Q All right. 15 If it be the driving the planning - . forget the 16 hypothetical -- the planning, the making of the plan by 17 emphasizing solutions for that type of accident, those.three 18 parameters, serves to set up a plan that will not be as 19 effective in making dose savings as otherwise could be the 20 case for some lesser accident, you still would advocate
. 21 driving the planning process on the basis of this particular
, 22 type of accident. -
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23 Is that correct? 24 A (Goble) That's cofrect on the assumption that I l 25 had to make the choice. Heritage Reporting Corporation (202) ~ 628-4888
l l l GOBLE - RECROSS 24583 - l 1 Naturally, you would like to distinguish those 2 situations so you could plan for both. And the reason -- l 3 well, I said the reason. Go ahead. 4 Q And I'm sorry, you're not finished? 5 MR. TRAFICONTE: He is, and I was going to put a 6 question. But you go ahead, I'll go back and -- I mean, it 7 would be convenient to put a question -- B MR. DIGNAN: It's more orderly if I finish, 3 MR. TRAFICONTE: I know. . 10 (Laughter) 11 12 13 14 15 16 1 17 l 18 19 20 21 , 22
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23 24 - 1 - 25 i
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q GO2LE - RECROSS 24584 1 MR. DIGNAN:- I'm not -through, but after that '--' l that was the " Mr. Dignan you'are not being fair"'look-. U- 2
'3-JUDGE SMITE: .I don't know what to do.
4 I am interfering unintentionally with the 5 ~ examination. MR. DIGNAN: ' Mr. Traficonte said he wanted to 6 7 shoot a quest' ion. 8 JUDGE SMITH: Go ahead. 9 MR. TRAFICONTE: I_just wanted to follow up, 10 because I think the witness hesitated maybe to. complete or 11 to go forward. And I'just think at this point it would be 12 ' advantageous if.he did that. 13 You just indicated in answer to that question that 14 you would let the planning be driven by this. serious, fast-i 15 paced and of the accident spectrum. 16 JUDGE SMITH: This what? Serious? 17 MR. TRAFICONTE: This serious, fast-paced end-of 18 the accident spectr'um. ' j 1' 19 MR. DIGNAN: No. Serious, fast breaking, fast 20 ending. 21 MR. TRAFICONTE: Fast ~ending.
^
22 JUDGE SMITH: Right. 23 MR. TRAFICONTE: Which he noted was the -- 24 MR. DIGNAN: Those three are the parameters, ! 25 JUDGE' SMITH: Three of them. Three of them. 1 l 1 O
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GOBLE - RECROSS 24585 . 5 1 MR. TRAFICONTE: All right, fine.
- 1 2 JUDGE SMITH: Compared with what?
i 3 MR. DIGNAN: Any other, i 4
- MR. TRAFICONTE: Any other. lj 5 MR. DIGNAN: That's what I understand - -
I 6 JUDGE SMITH: That wasn't what you said. You said ; i 7 a less serious, without any of those three factors being 8 addressed, except one, one factor. i 9 MR. DIGNAN: Oh, no . - Well, that's fine, that's I 10 fine. 11 THE WITNESS: (Goble) Okay. 12 JUDGE SMITH: One of the three. 13 MR. DIGNAN: Yes. But I stil.1 think that's good. 14 JUDGE SMITH: Okay. . 15 MR. DIGNAN: Yes, and I'11 address it to him the 16 other way if you wish. 17 JUDGE SMITH: I don't wish. 18 '(Laugbter) 19 MR. TRAFICONTE: I just want -- 20 JUDGE SMITH: As a matter of fact, I wish I had 21 left you circling around the moon when you hadn't 22 appreciated that he was talking about the fast-ending
- 23 accident.
24 MR. DIGNAN: Oh, I appreciated it., i 25 MR. TRAFICONTE: Let me just come back and ask for l
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*- GOBLE - RECROSS 24586 1 a clarification.
2 You indicated that if you were forced to choose, 3 you would choose. Is it at the average site or some other 4 site other than Seabrook it would be possible to have a plan 5 that would do both and that there is something specific at 6 Seabrook that forces you to the Hobson's choice?. 7 Is that your understanding of the situation? 8 THE WITNESS: (Goble) Well, the choice is more 9 acute in the case of Seabrook. 10 No, the point.is simply a-question of where the 11 most dose savings is to be achieved. And the reason that-I 12 focus on those accidents is that those'are the accidents for 13 which emergency planning can achieve the biggest mmounts of 14 dose savings. 1,nd even though they are considerably less t' 15 probable than many other sorts of accidents, the-16 opportunities for saving doses are there. . 17 BY MR. DIGNAN: ~ 18 Q In other words, what you are saying is, because 19 the biggest accidents give the most potential for dose 20 savings, they are the ones to concentrate the planning on. 21 Is'that right? 22 A (Goble) Yes. 23 And again, with the caveat that that doesn't mean 24 I think that you shouldn't plan for other situations. And 25 to the extent that you can distinguish them, you want to do ( Beritage Reporting Corporation
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GOBLE - RECROSS 24587 . 1 as well as'you can for the others. 2 Q Now if one takes that approach to planning, 3 Doctor, is one truly planning for a spectrum of accidents as 4 the regulations contemplate? 5 Or is one concentrating on only one part of the 6 spectrum to the possible detriment of other parts of it? 7 A (Goble) Well,,I mean what you mean by -- what I 8 think anyone would mean by planning for a spectrum of 9 accidents means that you are not planning -- that you can't 10 plan -- that you are always going to be planning better for 11 some accidents and worse for other accidents. That's the 12 whole idea of planning for a spectrum, is recognizing that 13 you are making choices, that you are making tradeoffs.
~
14 So that what I'm saying is exactly what one would 15 mean by planning for the entire spectrum of accidents in the 16 sense that looking across the entire spectrum with .whatever i 17 you know about probabilities across this,-that you are 1 18 maximizing your opportunities for dose savings across the 19 entire spectrum ! l 20 So I would say you are planning across the j l 21 spectrum, but it's true that you will do better for come , j I 22 accidents and worse for other accidents.
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23 Q Now, Doctor, let's take on a somewhat real 24 situation in the sense of the exercise and the suggestion. 25 If I heard you correctly, you said that what you Heritage Reporting Corporation - (202) 628-4888
GOOLE - RECROSS 24588 i
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'l. would have preferred to:havefdone is shelter Salisbury and- t 2 evacuate Newburyport'at the time of that.first PAR; is that 3- correct?
4 A (Goble): That's correct. j 5 Q- Now. Salisbury isl closer into theLplan,thans 6 Newburyport,.isn't it? q 7 A- -(Goble) =Yes. 8 JUDGE COLE:. We're talking,about the second PAR,: 9 right, the. evacuation within five miles? 10 MR. DIGNAN: Yes, that's right. . I'm sorry. ~It is 11 true'in the second PARS. - 12 BY MR. DIGNAN: 13- Q' Now if one took that_ course of= action, the. result, 14 would be t, hat the residents of Salisbury who are closer ~in 15 would for the duration of the' sheltering period, whatever 16 was selected,=and we're agreed that'it can't'gcronLforever, 17 is that right -- would take-someLdose, aus N s .. Chan point'ed 18 out, right? i 19 A- (Goble) Yes. j l 20 Q And if in a woodframe. house,-they would take 90 {
'l 21 percent of.the dose they would take'outside is the general
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22 wisdom as I understand it.
- 23. Is.that.right?
24 A (Goble) ,W ell, it depends on:the house. The 25 residents of Salisbury on the average:will have l('. Beritage Reporting-' Corporation .i (202) 628-4888 . l I i
GOBLE - RECROSS 24589- - 1 significantly better shielding than 90 percent. 2 Q Well, I really don't want to -- 3 A (Goble) All right, if it -- 4 Q If it was a .9 DRF, that means -- which I 5 understand and correct me if I'm wrong. I understand with a 6 woodframe house, forgetting the basement, with a woodframe 7 house, isn't .9 the number that people usually associate 8 with a woodframe house? 9 Because if I'm wrong, you can give me another 10 number and I'll work with it. 11 A (Goble) Work with .9 and let's see where we get. 12 Q Okay. Well, I assure you .9 will favor me. So if 7.3 you would rather pick out another one, I'd be glad to work 14 with it.
'15 A (Goble) Yes, I know that .9 will favor you.
16 Q Okay. Now that means 90 percent of the dose that 17 they would get if they were outside attempting to evacuate 18 at the same time. 19 Isn't that right? 20 A (Goble) That's right. 21 Q Now what you have done is move the Newburyport -- , 2'2 MR. TRAFICONTE: Can we just be clear that's cloud 23 shine dose? 24 ,THE WITNESS: (Goble) Yes. We're talking about 25 cloud shine dose. t Heritage Reporting Corporation (202) 628-4888
GOBLE - RECROSS .24590-1 MR..TRAFICONTE: It's a component of the dose that s 2 you're talking about. . 3 THE WITNESS: (Goble). That's.right. 4 And maybe what we could'do'is. carry a couple'of 5 numbers'in parallel, because people.*ith basements, which 6' are a substantial fraction -- well, cloud shine the only -- 7 BY MR. DIGNAN: l 8 Q. That's why I told you to pick any number-you want. 9 A (Goble)' All right. 10 Well, let's work with .9 and let's work also with 11 .5. . 12 Q Well, let's also. assume we're working with the 13 number we're supposed to which is the gene pool as a whole. l l s 14 So you want to pick an average DRF and we will work with l 15 that. 16 A (Goble) Yes, something like -- 17 Q Okay, pick one. 18 A (Goble) All right. Well, let's say .7. 19 0 .7. 20 A (Goble) Between .9 and .5. 21 Q Now what that means is that the residents of L 'I 22 Salisbury will get on average 70 percentlof the dose that j 1 23 they would get during the duration of their sheltering that i 12 4 they would get if they got outside and left, right? 25 or if they stood outside the house instead. l :
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GOBLE - RECROSS 24591 - 1 A (Goble) If they stood outside the house.- 2 Q Okay. . 3 Now the residents of Newburyport who are further 4 out are going to get clear ahd be in good shape, we can all P 5 agree. That's one of the r'easons you elect that, correct? 6 A (Goble) Yes. 7 Q And we can assume a fairly substantial amount of i 8 dose savings for Newburyport as a result. 9 Is that correct? 10 A (Goble) Yes. { 11 . Q Now, with respect to Newburyport, they of course 12 would not get from the same duration of time the same dose 13 as those of Salisbury simply by virtue of their further 14 distance from the plant; isn't that right? 15 Dose goes down with distance from the source term, 16 isn't that right? ( 17 A ~ (Goble) That's correct. 18 Q So isn't it not only possible but likely that if l 19 this sheltering period was four hours, five hours, is that l l 20 the maximum you would shelter anybody? 21 A (Goble) Well -- , ; 22 Q How long would you suggest we shelter people at 23 the maximum? ) 1 24 A (Goble) I would prefer not to shelter because you 25 don't always know what's going to happen -- but you would s Heritage Reporting Corporation I (202) 628-4888 j l
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GOBLE - RECROSS 24592
- l 1 prefer not to shelter people longer than four.or five hours 2: of actual exposure time.
3 Q. Now if the release -- the release.in this case, 4 how long did it continue over those towns? Do you recall? 5 .
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1 8 l GO9LE - RECROSS 24593 . l' A (Goble) Well, over the towns it was perhaps -- I 2 mean, over a particular location it was perhaps as much as 3 two-hours, but likely be less. 4 Q Two-hours ending when? , 1 5 A (Goble) Well, it was for different ones. 6 We can look at the tracks. But two-hours is a 7 plausible figure. Do you want me to give you an 8 illustration? I probably can come up with one pretty quick. 9 Q No, I'll work with your two-hours. 10 Now, everybody in Salisbury then is going to get 11 70 percent of the dose they would have by being outside; 12 right? 13 A (Goble) That's right. 14 Q By staying there for that two-hours. 15 The residents of Newburyport are going to make a 16 fairly substantial amount of dose savings depended upon how 17 long -- whether or not they got totally clear of the plume 18 or not. 19 A (Goble) That's right. 20 Q There will be some dose to them? 21 A (Goble) That's right. , 22 Q It won't be 100 percent dose savings?
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23 A (Goble) That's right. j 24 Q And we still have the problem, do we not -- if
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25 this weren't an exercise -- if we went through marching the { i Heritage Reporting Corporation (202) 628-4888 _ . _ _ _ _ _ _ _ _ _ _ _ . _ _ _ . _ - _ _ . _ - _ _ _ __ 9
GOBLE - RECROSS 24594
- 1 people out of Salisbury eventually; correct?
i 2 A ,(Goble) We have that problem. But in the 3 scenario -- in this scenario it was not a very' serious 4 pr6blem in the. sense that'the amount of radioactivity left . 5 behind was rather low. 6 Q In any event, with the election that went the way l 7 it did, the Salisbury people instead were evacuated out; 8 correct? 9 A (Goble) That's correct. l 10 Q And certainly, there was some dose savings to the i' , 11 group; we agree to that? ) l 12 A (Goble) To.the group as a'whole, yes. Although )
)
13 it was slightly complicated, some people got_ larger exposure- j
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-w 14 because they moved with the plume. l
\~ / 15 But to the group as a whole there was some saving.
. 16 Q And Newburyport, though it stayed there and 17 received, assume an average of 70. percent, are you going to.
18 put the same DRF factor average, DRF factor on Newburyport? 19 A (Goble) I don't know whether I should or not. 20 But suppose we do it for now. 21 Q It would be fair, wouldn't it? 22 Are you familiar with the area? 23 A (Goble) Well, yes. 24 Q Newburyport actually has more substantial housing 25 than does Salisbury, by and large, doesn't it? ( Heritage Reporting Corporation l (202) 628-4888
- GOBLE - RECROSS 24595 -
1 A (Goble) I was trying to remember. Distinguish 2 1petween Newburyport and Plum Island, which has beaches. But 3 Newburyport, I don't know.
*4 Q I submit to you in this exercise we're going . '5 through, that I for one, at least, can't really see how q 6 anyone can say that definitely the choice to go: evacuate !
7 Salisbury and hold Newburyport, was a worse choice than the , 8 other way around when we really consider all these factors. i 9 The factors being, granted, the Salisbury residents who were 10 evacuating were closer to the plant and therefore had a 11 higher potential per hour of dose. But then again, you got 12 them out at some point. 13 Newburyport, granted, stayed there but only got 70 14 percent of a lesser dose in the first place. 15 A (Goble) Wait a minute. . i 16 What happened -- first of all, the Newburyport 17 people didn't stay there. They were ordered to evacuate 18 before the plume arrived. So what happened with the 19 Newburyport people is that they were put in shelters before 20 the plume arrived. And then as,the plume approached they 21 were told to evacuate and received larger. , 22 So the Newburyport people received larger l 23 exposures than they would have had they stayed sheltered. l 24 Q Had they stayed sheltered? 1 25 A (Goble) Yes. l l u Heritage Reporting Corporation (202) 628-4888 !
GOBLE - RECROSS 24596
-- 1 And also, larger exposures than they would have t
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\ 2 had they left two-hours earlier.
3 And the Salisbury people received larger exposure, 4 as we more or less. agreed in this -- I mean, you're not 5 committed to this.- But the story that we were telling had 6 the Salisbury people receiving. higher exposure as a. result , 7 .of the evacuation strategy. 8 So we had a case, the combination of.these 9 recommendations led to higher. exposures in both of the areas 10 which were most hard hit. 11 -Q- So I must have misunderstood something. 12 What are you doing with Salisbury? Are you 13 sheltering them throughout the entire passage of the plume .}" 14 or are you sheltering them for part of the time and (N 15 evacuating them in your suggestion? 16 A (Goble) I'm sheltering them until the plume has i 17 passed through. 18 MR. DIGNAN: That's all I have. 19 (Pause . ) 20 JUDGE SMITH: Did you say something, Mr. Dignan?- ) i
, 21 MR. DIGNAN: No , Your Honor. 1 22 JUDGE SMITH: Did you say anything at'all after 23 his answer? l 24 MR. DIGNAN: No. I'm sorry, I said, that's all.
25 ' JUDGE SMITH: Do you have. recross? ((* Heritage Reporting Corporation (202) 628-4888 i ___g__--___
GOBLE - RECROSS 24597 . 1 MS. CHAN: Yes, the Staff has a few questiens. . o 2 JUDGE SMITH: Okay. 3 RECROSS-EXAMINATION 4 BY MS. CHAN: 5 Q Earlier in your redirect you said that the 6 probabilistic studies.such as set forth in the Oak Ridge , 7 study have not been incorporated yet in accident prognosis, 8 and that they have not -- your words were, "They haven't yet 9 defined whether an accident will progress." And that's the 10 reason why you think that additional PARS should be based on 11 probabilistic estimates of where the accident will go; is 12 that correct? 13 A (Goble) I wouldn't phrase it quite that way. 14 Whkt I would say is, I believe that more use could 15 be made of probabilistic safety analysis to provide guidance 16 in the selection of PARS. 17 Q Would you advocate responding and generating PARS 18 based on speculation as to what the accident will be or do 19 you think it's more sound policy to respond based on the 20 current situation? What information you have before you, 21 what the plant conditions are? What the wind is now?
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22 Perhaps what forecasts you have for the meteorological 23 conditions? . 24 Which is the better basis to use?
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25 A (Goble) I believe that it is - particularly when Heritage Reporting Corporation (202) 628-4888
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.- you have. lengthy. evacuation times it's appropriate to . 1 2 speculate, to some extent,.in a controlled: fashion. .That 3 what you need to do is to look.at what the uncertainties 4 are. What the. probabilities of.various things are that-d 5 might happen. And to choose -- to find out how much you 6 gain -- see, you gain something by acting early.- You lose 7' by acting before you know.what the full story is.
8 And it's appropriate to model.these possibilities 9 and figure'out when you're gaining or losing. 10 Q , So.you conclude that it's sound policy to base 11 your protective actions on the speculation of what the
. 12 accident will be? .
13 A (Goble) Well, I would prefer to'use a term other l 14 than " speculation." l s 15 Q Prognosis? . l' 16 A (Goble) That's right. - 17 A reasoned and planned-for prognosis. 18 ! 19 20
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GOBLE - RECROSS 24599 . 1 Q Based on the probability, though, of something 2 occurring? 3 A (Goble) That's right. 4 Q As opposed to what is actually occurring and what 5 information you have in front of you? v 6 A (Goble) That's right. s - 7 Q Can you please describe the relative importance of 8 cloud shine and ground shine during the plume passage when
'. 9 you're considering evacuation?
10 A (Goble) Do you mean -- 11 Q The relative components of the dose from those two 12 sources: cloud shine and ground shine? 13 A (Goble) Which will be' larger?
/ 14 Q Yes.
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15 A (Gohle) Okay. t 16 First of all, I don't know. It depends on what is 17 released in an accident. In th'e exercise, accident ground 18 shine was a very small portion. 19 In the serious fast-breaking accidents that I talk 20 too much about, ground shine can be a very important 21 component and can be half or more the dose. And it depends . 22 specifically on the proportion of various radioactive
# 23 material that is released.
24 Q Is this applicable to the period of plume passage? 25 Ground shine? l I Heritage Reporting Corporation I * (202) 628-4088 l
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-* GOBLE --RECROSS 1- A '(Goble) . Ground shine ~ persists"af'ter plume t
2 passage. 3 Q .I'm' talking aboutithe duration of plume' passage,.
; 4 -. when one'is in the; process ~of considering evacuation options 5 -early in the' release?!
E- A (Goble) No. . 7 .The estimates I'm talking [about for. the relative
- 8. proportion which are;the!results of modeling under various c
1 9 circumstances is done by'the-NRC^are for time durations of 10 the' order of a few hours: four-hours, six-hours. Six-hours. 11 is a commonly calculated period of time in people's 12 modeling. 13 And within a period of six-hours.you can get
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14 ground shine doses in a major accident ~which are comparable 15 to cloud shine doses. 16 Q During the exercise of-the plume exposure portion 17 when the population is evacuating, was' ground shine a 18 significant factor? 19 A (Goble) No. 20 Q Is it primarily the case that after the plume has 21 passed over, and if.the people remain'in shelter, that 22 ground shine becomes a significant factor or more-23 significant factor if they stay in' shelter? 24 MR.-TRAFICONTE:- As compared to evacuating? 25 MS. CHAN: Yes..
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GOBLE - RECROSS 24601 . 1 BY MS. CHAN:
- 2 Q As compared to plume passage?
3 MR. TRAFICONTE: I-don't think the question makes 4 sense.
~ , 5 THE WITNESS: (Goble) I might be able to give an . 6 answer. ,
7 (Laughter) 8 THE WITNESS: (Goble) I'll accept your advice. 9 BY'MS. CHAN: 10 0 If people have not evacuated and they have 11 remained in shelter, isn't that the time when ground shine 12 becomes a significant factor in the dose calculation? 13 MR. TRAFICONTE: Again -- 14 MS. CHAN: I'm trying to compare it. If they are 15 not there, it's not a significant factor. 16 MR. TRAFICONTE: Yes, if they're not there in the 17 sense that -- but if the evacuation is successful and they 18 evacuate before the ground shine accumulates. I mean, as 19 long as that is part of the hypothetical, I don't think 20 there's a problem, i 21 MS. CHAN: Yes. 22 MR. TRAFICONTE: You are acting as if evacuation 23 always avoids a ground shine dose?
- 24 MS. CHAN: No. I have two situations.
25 One is where the peop1'e evacuate and the plume, Heritage Reporting Corporation (202) 628-4888 .*i
GOBLE:- RECROSS 24602 1 cloud shine is;the more important factor-because they are; ky ,/ 2 out in.the_ plume.. And ground' shine is'less significant than 3 the cloud shine. (Goble) You asked me about that - 4- THE WITNESS: 5 situation and what I-said was that that was not necessarily-6 true. That the ground shine -- 7 BY MS CHAN: 8 Q After six-hours? 9 A -(Goble) No. I said for the initial six-hours.- I-10 hope.that was clear. 11 .I said that over a six-hour period of exposure, 12 which is a. time period of the order of an evacuation-time. 13 And over fewer hours than that in many circumstances. , 14 Q Are you saying -- just now when you said within . (' 15
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.the first six-hours, are you saying that the ground shine is .
16 a more significant factor than cloud shine during those six-17 hours of plume passage?
)
18 A (Goble) I'm saying it can'be, yes. 19 I'm not saying it necessarily is. It depends on 20 the mix of material released from the accident. 1
. 21 JUDGE SMITH That is your reference to a 22- different dose reduction factor for ground shine?
23 THE WITNESS: (Goble) No. j i 24 We were, at this point, talking about, l J 25 hypothetical, people who'were o.utside potentially evacuating >l l Heritage Reporting- Corporation
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O GOBLE - RECROSS 24603 - 1 the plume. So we have people outside -- I think this was 2 her first situation. I hope I'm saying this right. 3 And my understanding -- the answer I was giving 4 was assuming -- - 5 JUDGE SMITH: She's conferring, give her a chance 6 to confer. l 7 THE WITNESS: (Goble) Let me go on and then you 8 can tell me whether I actually answered your question. 9 The question as I understood it, the first 10 question, concerned people outdoors and the relative 11 importance of cloud shine to ground shine in the first few 12 hours of exposure, let's say. 13 JUDGE SMITH: Okay. 14 THE WITNESS: (Goble) And I eaid that for serious 15 accidents in which a substantial portion of the core is 16 released early, it can well happen that exposure due to 17 ' ground shine during that period of time is comparable to 18 exposures due to cloud shine. 19 BY MS. CHAN: 20 Q This opinion is limited to the severe accident we 21 discussed earlier; is that correct? , 22 A (Goble) This is limited to severe -- that's 23 right, very severe accidents in which a substantial amount 24 of -- 25 Q But in the more probable accidents, the other Heritage Reporting Corporation ' (202) 628-4888
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- 1 parts of the spectrum, is that also true? l 2 A (Goble) That's right.
3 One can argue about what's the more probable part 4 of the spectrum. But in the rest of the spectrum which may well be more probable, .you expect: primarily release of noble i 5 6 ; gases and that will produce -- the noble gases will produce
- i. 7 only cloud shine, they won't.cause ground shine.
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o GOBLE - RECROSS 24605 - 1 Q And also for the same class of accidents,.the 2 spectrum beyond your single severe, fast breaking, short 3 duration accident? 4 A (Goble) Well, that's not a single accident. 5 Q Well, your -- 6 A (Goble) It's a portion of the spectrum. 7 Q Right, your portion of the spectrum. 1 8 Is it true that after the plume has passed over 9 and people remain in shelter, that ground shine becomes a 10 significant factor for those people? 11 A (Goble) Well, ground shine is'all that will be 12 left after the plume has passed over. The doses -- so in 13 that sense, it's the most significant thing around. It may 14 be at a much lower level than the exposures one was talking 15 about before. 16 Q One last question. 17 When you were questioned on the relative advantage 18 of sheltering Salisbury and you said evacuating Newburyport, 19 did you take into consideration that the people that you are 20 most concerned about on Salisbury Beach are the beachgoers, 21 and that the beachgoers do not have shelter? , ! 22 Had you considered that when you say shelter 23 Salisbury? 24 A (Goble) I'm sorry. No,,I was not -- I treated 25 the Salisbury Beach people as an entirely separate l 1 l Heritage Reporting Corporation (202) 628-4888 Ol l l 4
GOBLE.- RECROSS 24606 f- 1 population. And the discussion about Salisbury was just the f ( - 2 residents. 3 My only quarrel.with the PAR for the-beach was-4 that I wished that it had occorred earlier. I was not 5 complaining that they should have sheltered. 6 Q So in response to-questions from Mr. Dignan on 7 sheltering Salisbury Beach, you didn't mean the'beachgoers. 8 You meant the residents. l 9 MR. TRAFICONTE: I don't think the question was 10 for Salisbury Beach. 11 THE WITNESS: (Goble) I think Mr. Dignan, my 12 discussion with Mr. Dignan had to do with the Town of 13 Salisbury, not with Salisbury Beach.
,(~N. 14 MS. CHAN: Fine. .
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15 THE WITNESS: (Goble) I had an earlier discussion l 16 with him about the dose that would be received by people on 17 the beach. But there we were assuming they were evacuating. 18 MS. CHAN: Thank you, Dr. Goble. 19 Thank you, I have no further questions. 20 MR. TRAFICONTE: Mr. Flynn, do you have? I
. 21 thought you indicated you did.
22 MR. FLYNN: Well, I'had intended to ask a number 23 of questions, but as it happens Mr. Dignan and Ms. Chan have 24 already addressed those issues. 2 5 .. MR. TRAFICONTE: Does the board have any other
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24607 . 1 questions? . 2 EXAMINATION BY JUDGE COLE 3 JUDGE COLE: Just one or two, Dr. Goble. It has 4 to do with the spectrum of accidents that are possible and 5 your zeroing in on one type of accident and recommending 6 that we use that to drive our actions on recommendations. 7 The basis that you stated for that was increased 8 dose savings. And I just want to make sure that you took 9 into consideration, I'm asking you if you did take into 10 consideration all of those other types of accidents which 11 result in lesser emissions but nevertheless have a much 12 greater frequency of occurrence and much higher probability 13 of occurrence than the type of accident that you describe? f 14 And did you make a conscious comparison of those 15 possibilities and the resultant savings in long term 16 associated with that type as compared to your fast breaking, 17 short ending accident? 18 And you came to th'at conclusion by a conscious 19 comparison of all those possibilities. 20 Is that so, and if not, what did you use? 21 THE WITNESS: (Goble) The short answer is, yes, 22 it's so. And the only reason I want to expand on it is to 23 say that I don't -- I think it's exactly appropriate, in' , 24 effect, to look over the whole spectrum. 3 25 And what I don't mean to do by all of that is say j Heritage Reporting Corporation j (202) 628-4888 i l i _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )
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. 1 24608 1 that you should ignore these other accidents. It's simply ,
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\, / 2 what concerns me in the Seabrook plans *is that, in l l
3 attempting to fine-tune the plans to make sure you do as 4 well as you can for this broad spectrum, that you are j
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5 setting yourself up for potentially really serious problems ] 6 with this one end of the spectrum. 7 It's not that I think that you shouldn't cope with i 8 the broad area of the spectrum. It's that this very -- the 9 very serious end is the place where even taking into 10 account, I mean multiplying through, if you like, the 11 probability of an pccident times magnitude of the potential 12 dose savings that could be achieved by effective emergency 13 response -- it's at the extreme end where most, not all, but (3) l, 14 most of the expected dose savings are to be found.
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15 And what one wants to be - you can't fine-tune 16 these things too much, but understanding that means you 17 don't want to leave yourself vulnerable at that end of the 1 18 spectrum simply to fine-tune what you are doing for the rest I 19 of the spectrum. 20 , JUDGE COLE: All right, sir.
. 21 So you are willing to sacrifice something in the 22 other part of the spectrum in order to protect yourself for 23 the big accident?
24 .THE WITNESS: (Goble) That's right. If I need 25 to, i ( Heritage Reporting Corporation
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24609 + 1 , JUDGE COLE: Okay. Thank you. , 2 MR. TRAFICONTE: I don't have any redirect. 3 JUDGE SMITH: Anything further? 4 (No response.) 5 JUDGE SMITH: All right, you are excused. Thank 6 you. 7 (The witness was thereupon excused.) 8 MR. TRAFICONTE: Could we maybe go off the record 9 and talk about the schedule from this point? 10 JUDGE SMITH: We're adjourned until 9:00 a.m. 11 tomorrow., 12 (Whereupon, at 5:04 p.m., the hearing was 13 recessed, to resume at 9:00 a.m., Thursday, June 8, 14 1989.) 15 16 17 18 19 i 20 , 21
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. l CERTIFICATE (c),
N,- l l This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: l 1 l l Name: Public Service Company of New Hampshire, et al. j (Seabrook Station,- Units 1 and 2) i Docket No: 50-443-OL { 50-444-OL (Off-site Emergency Planning) Place: Boston, Massachusetts Date: June 7, 1989 (" were held as herein appears, and that this is the original
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transcript thereof for the file of the United States Nuclear Regulatory Commission taken stenographically by me and, thereafter reduced to typewriting by me or under the ; i direction of the court reporting company, and that the l I transcript is a true and accurate record of the foregoing l l proceedings. m ; (Signature typed) : Donna L. Cook Official Reporter l . Heritage Reporting Corporation (3
\ 's / ] HERITAGE REPORTING CORPORATION -
(202)628-4888 _ _ _ _ _ _ _ _ .}}