ML20244E028
| ML20244E028 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/12/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8795 ASLBP, OL, NUDOCS 8906200116 | |
| Download: ML20244E028 (164) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION JTGTA_
l ATOMIC SAFETY AND LICENSING BOARD l
l .
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 EVIDENTIARY HEARING 1
O Pages: 25065 through 25226 Place: Boston, Massachusetts Date: June 12, 1989
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25065
.. UNITED STATES NUCLEAR REGULATORY COMMISSION-
- ATOMIC SAFETY.AND LICENSING BOARD:
\ ~
In the Matter of: :)
') DocketJNos.
PUBLIC' SERVICE COMPANY.OF- )- 50-443-OL
.NEW HAMPSHIRE,-et.al.,
.) 50-444-OL.-
. '. )' ;OFF-SITE EMERGENCY, a
+ -(SEABROOK STATION, UNITS 1.AND 2)- .) . PLANNING
]
1
...- EVIDENTIARY HEARING- !
Monday,
-June 12, 1989 Auditorium
. Thomas P.~O'Neill, Jr.
Federal Building: 'i 10 Causeway Street.
Boston, Massachusetts The above-entitled matter.came on'for hearing,- j i
pursuant to notice, at 1:00 p.m. I BEFORE: JUDGE IVAN W. SMITH,_ CHAIRMAN Atomic Safety,'and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 420555 JUDGE KENNETH A. McCOLLOM, Member. !
Atomic Safety-and Licensing Board i U.S. Nuclear Regulatory Commission Washington, D.C. -20555=.
JUDGE' RICHARD F. COLE,. MEMBER Atomic Safety andJLicensing Board
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l U.S. Nuclear Regulatory. Commission. l Washington, D.C.- 20555 l
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1 Heritage Repcrting Corporation i
, ( (202) 628-4888 l.
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25066 APPEARANCES:
For the Aeolicant:
THOMAS G. DIGNAN, JR., ESQ.
GEORGE H. LEWALD, ESQ.
KATHRYN A. SELLECK, ESQ.
JAY BRADFORD SMITH, ESQ.
JEFFREY P. TROUT, ESQ.
GEOFFREY C. COOK, ESQ.
Ropes & Gray
- One International Place Boston, Massachusetts 02110-2624
, For the NRC Staff:
l l SHERWIN E. TURK, ESQ.
l ELAINE I. CHAN, ESQ.
l EDWIN J. REIS, ESQ.
RICHARD BACHMANN, ESQ.
Office of General Counsel-U.S. Nuclear Regulatory Commission Washington, D.C. 20555 g
For the Federal Emeroency Manacement Acency:
H. JOSEPH FLYNN, ESQ.
LINDA HUBER McPHETERS, ESQ.
Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 For the Commonwealth of Massachusetts:
JAMES M. SHANNON, ATTY. GEN.
JOHN C. TRAFICONTE, ASST. ATTY. GEN.
ALLAN R. FIERCE, ASST. ATTY. GEN.
PAMELA TALBOT, ASST. ATTY. GEN.
MATTHEW BROCK, ESQ. ,
LESLIE B. GREER, ESQ.
Commonwealth of Massachusetts One Ashburton Place, 19th Floor Bosten, Massachusetts 02108 Heritage Reporting Corporation (202) 628-4888 a
25067 APPEARANCES: - (Continued)
For'the State of'New Hampshir_gi GEOFFREY.M. HUNTINGTON,' ASST. ATTY. GEN.
' State of.Newl Hampshire-
.25 Capitol Street.. .
Concord, New. Hampshire 03301-For the Seacoast' Anti-Pollution Leacue:
ROBERT A. BACKUS, ESQ.
Backus., Meyer & Solomon
. 116 Lowell Street P.O.' Box 516-Manchester, New1 Hampshire 03105-JANE DOUGHTY, Director Seacoast Anti-Pollution League ]
5 Market Street Portsmouth, New Hampshire 03801 ]j For the Town of-Amesburv: 0
.i BARBARA J. SAINT ANDRE, ESQ.
Kopelman and Paige, P.C.
./ 77 Franklin ~ Street ,
Boston, Massachusetts )
WILLIAM LORD-Town Hall Amesbury, Massachusetts 10913 q For the City of Haverhill and' Town of Merrimac-1 ASHOD N. AMIRIAN, ESQ. I P. O. Box 38 l
Bradford, Massachusetts 01835 '
j For the City of Newburyoort:
BARBARA J. SAINT ANDRE, ESQ.
JANE O' MALLEY, ESQ.
Kopelman and Paige, .P.C.
77 Franklin Street.
Boston, Massachusetts 02110' i
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25068 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' Salisbury:
CHARLES P. GRAHAM, ESQ.
Murphy and Graham 33 Low Street -
Newburyport, Massachusetts 01950 For the Town of West Newbury:
l JUDITH H. MIZNER, ESQ.
l Second Floor l 79 State Street Newburyport, Massachusetts 0195C For the Atomic Safety and Licensina Board:
ROBERT R. PIERCE, ESQUIRE .
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 8
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25069 1 H Q E EL
( WITNESEE31 DIRECT CROSS PEDIRECT.BEQERSJ_ E)gg Witness:
(No witneases) i
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. LXHIBITS: IDENT. REC.. REJ. DESCRIPTION:
Mass AG l
112- prev. -25131 .ER 5.4'&:5.4A, 115 25222 25222' Testimony'off Sandra Fowler Mitchell .)
on behalf of the Massachusetts.
Attorney General and NECNP re: ,
TOH/NECNP Exhibit 2
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25070 INDEX INSERTS: PAGE O, '
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25071 1 E B.Q Q E E P_ J. H G H k 2 JUDGE SMITH: Good afternoon.
3 Is there any preliminary business?-
4 MR. TRAFICONTE: Yes, there is, Your. Honor. Two 5 very quick points.
6 First, I have distributed the schedule,.or'I 7 should say an updated schedule that takes the hearings, in j l
, . 8 light of the present posture, that schedules the-remaining '
9 witnesses, obviously subject-to motions'in'limine. ,
10 l' I would just note that we have intentionally left 11 the 26th of. June blank' simply.because we're not --.In past 12 experience now -- it.took us' awhile t'o learn'it -- but past-13 experience indicates that there is some' slippage in both- j p 14 directions, and we would just like to have that date blank.
I q 15 In the event that we held on course for the'two l 16 weeks, we would propose that in that last week'we would 1
17 actually begin on Tuesday and not on Monday. I 18 The reason for that is'that Mr. Carter, who we j 19 have scheduled for that day, is one of our experts that. I
.]
20 needed as much lead time-as we could give him. And at'this
, 21 point we have told him that he would be on on the 27th. In 22 !
the event that he were moved up one -- if he were moved into 23 the preceding week, that might possibly be doable, although :
24 we would have to check with him as soon as we sould know
-25 that.
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25072 1 But if remained pretty much the way it is now, we 2 would prefer and he would prefer not having to get up here 3 on Monday, but instead on Tuesday morning.
l 4 The other point I --
5 MR. TURK: Your Honor,. I would like to address the 6 schedule also. If Mr Traficonte doesn't mind, let me do it 7 right now before he moves on to his other point.
8 MR. TRAFICONTE: Before I go on to what?
- 9 MR. TURK: Your next point.
10 MR. TRAFICONTE: My other point is very brief and 11 it's an inquiry to Mr. Turk, and he probably could handle 12 this one when he is commenting on other matters.
13 We have today received Applicants' response to our 14 motion to hold the record open pending low power testing 15 contentions. I just would want an indication from Mr. Turk 16 as to when the staff is intending to file a response.
17 JUDGE SMITH: Yes, I was going to ask that very 18 question.
19 MR. TRAFICONTE: And then we can perhaps file a 20 schedule and argument.
21 JUDGE SMITH: If you do intend -- .
22 MR. DIGNAN: Why do we have to have an argument on
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23 that?
24 It's been briefed. It will be thoroughly briefed 25 and we will just chew up another day.
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25073 1 OUDGE SMITH: Well, there is.a point, however, Mr.
,-m -
( ) 2 Dignan, I did want to raise.
3 I want to be sure that the' Board is fully informed 4 on this very important motion. On the way up, in the 5 airplane, I read portions of Chemical Waste Management, 6 Inc., the EPA provided to'me by Mr. Pierce.
7 And it seems like the'D.C.-Circuit backed away
. 8 somewhat from hearing rights alluded to or specified in UCS 9 v. NRC, a 1984 case.
10 Now, just a quick and dirty reading suggests to me 11 that the distinction is that between formal and informal 12 rather the hearing rights versus no hearings rights, I don't 13 know. But I just read both your brief and that one 14 extremely fast. And I would appreciate it if everyone would 15 take a look at that case and see if it tells us anything we 16 should take into account. And since the Staff hasn't filed 17 yet, you might be able to do that.
18 Or are you already doing that?
19 MR. TURK: We are in the midst ofLpreparing a 20 response to Mass AG's motion.
21 In response to Mr. Traficonte, let me indicate 22 that it will be-filed later this week. I think the rules 23 afford us until the 15th for filing. I think that's 24 probably when it's going to issue.
25 JUDGE SMITH: Yes.
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25074 1 MR. TURK: We will look at-the Chemical Waste )
2 Management case.
3 JUDGE SMITH: That was decided May 5th. !
4 MR. TURK: That's right, and I'm aware of that i i
5 case, Your Honor. ]
6 JUDGE SMITH: Oh, are you?
7 MR. TURK: I'm aware that it does restrict, or at i
8 least step away from, and in fact explicitly renounce a .
9 portion of its statement in USC.
10 JUDGE SMITH: Well, it backed away from some of l 11 the language that was used there, but I believe on a I
12 different level.
13 However, I have no confidence in that at all.
14 MR. TURK: That's right.
15 Your Honor, if I may also, I would like to address 1
16 the schedule. l I
17 We have seen a series of proposals by Mass AG )
18 throughout the last several weeks in which they have come 19 out with their view of what the schedule should look like.
20 The latest version of that came out today.
21 And I notice that next week's schedule for the ,
22 19th begins with two days dedicated to Harris on 23 qualifications and training, and Applicants' Panel No. 20. ~
24 And I would like to indicate that we do not accept 25 that schedule, nor do we wish that to govern the proceeding.
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-25075- i 1 Traditionally, we've-found that ETEs have.taken an
(_ _
2 inordinate amount of cross-examination-time. .And because'of i
3 that, I've asked Mass AG in the past to schedule ETEs to
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4 begin on the 19th so that we're sure we can cover all of the 1
5: evacuation time estimate testimony within the' period of a j 6 single week. )
7 My reason for that'is,-in the past we have had Dr.
. 8 Urbanik have to travel out here twice for no purpose. He's 9 come out and had to go home without testifying. He came out' 10 again. Unfortunately, the. Board chairman was ill and~he had 11 to return again. And I want to make sure'that we can get 12 Dr. Urbanik here to testify within one week and not have to 13 bring him back a further week.
14 I would note also that I accept Mr. Traficonte's s_ 15 representation that he would like Monday to remain blank, :j i
16 Monday the 26th. But I think that's just a little bit ]
I 17 disingenuous because, in the past, ETE cross-examination has .;
i 18 gone on and on over the slightest minutia. And.I don't see '!
19 any way that we are going to finish ETE cross-examination in l 20 the two and a half days that Mr. Traficonte has laid out on t
, 21 his schedule.
22 In that period of time, we have Dr. Urbanik's i I
23 testimony still to come on traffic management. That's the 24 testimony that he ca.e twice to present and was unable to -l 25 do. We have.his testimony, as well, on the evacuation time i
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25076 1 estimate contentions, Contentions 1 to 3, which at one time 2 was thought to be unnecessary because there had been a 3 stipulation worked out between Applicants' and Mass AG.
4 Mass AG stepped away from that stipulation and now 5 here we are having to testify on those contentions.
6 We also have Dr. Adler's testimony. We have Mr.
7 Lieberman's and his Panel's testimony on ETEs. There is no i 8 way that's going to be able to be completed in the .
9 Wednesday, Thursday and Friday morning allocated on Mr.
1 l 10 Traficonte's schedule.
1 11 So I would like to indicate that as far as we are 12 concerned we would like ETE testimony to begin on Monday, 13 the 19th. If Mr. Harris has a problem, then it's up to the 14 Mass AG, I believe, to tailor his cross-examination so that 15 he's sure to be able to complete ETEs in time to reach the 16 Harrison panel. l 17 JUDGE SMITH: As you know, Mr. Turk, the Board 1
18 does not get involved in scheduling unless we can't escape I i1 19 it. l 20 MR. TURK: Well, I have indicated my 21 dissatisfaction with the schedule to Mass AG, and he's ,
i 22 refused to accommodate my stated objections.
23 JUDGE SMITH: I might note that that stipulation
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24 that you suggest they backed away from was also one that NRC 25 Staff tramped upon a little bit, too.
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25077 1 MR. TURK: Well, we indicated we didn't feel it 2 was binding on us.
3 JUDGE SMITH: Yes.
4 We're not going to make any order. I think it's 5 too hard to fine-tune the scheduling the way it is anyway.
6 MR. TURK: Well, we have to --
7 JUDGE SMITH: Specifically, what would you like to
. 8 have us rule, Mr. Turk?
9 MR. TURK: I would ask that the testimony that's 10 currently scheduled for the 19th and 20th --
11 JUDGE SMITH: Well, wait a minute.
12 Are you asking for a change in sequence, number 13 one?
14 MR. TURK: Yes.
15 JUDGE SMITH: Change in sequence.
16 And what would that change be?
)
l 17 (Pause to review schedule.)
l 18 MR. TURK: I would like to note one other thing, 19 Your Honor.
20 Until today, the Mass AG's schedule had
, 21 accommodated my concerns, and ETEs were scheduled to begin 22 on the 19th and run for four days, through Thursday. And 23 the Harris and Applicants' 20 testimony was not scheduled to 24 start until the 27th, the following week.
25 So what Mass AG has now done is he's taken the Heritage Reporting Corporation (202) 628-4888
25078 1 Harris testimony, moved it up, bumped it forward, whereas 2 before I had no objection.
3 MR. TRAFICONTE: I don't really -- two points.
4 First, there is a lot to do today. We're going to 5 argue over the Harris admissibility. There is a motion in 6 limine to strike all of Harris. That could resolve this 7 dispute.
8 The third point is, the reason why we did what we .
9 did is Mr. Harris is only available in that week. That's a 10 fact. If we put him at the end of the week, we're not sure 11 we could finish ETEs before we got to Harris. We wanted to 12 make sure that Dr. Harris was able to get here and get out.
13 If Mr. turk wants us to put ETEs up front and then 14 have Harris come in on Thursday and Friday and, in the event 15 we're not done with ETEs, continue them on the blank Monday, 16 that's fine.
17 You know, we don't have a big investment. I've 18 already proposed that Dr. Urbanik go first. Whenever we 19 start ETEs, he's the first vi; ness. He gets cross-examined 20 and then he can leave. Completely flexible. And, frankly, 21 I don't really understand why we have to take up hearing ,
22 time with a dispute, at least at this posture, in the l 23 present posture.
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l 24 MR. TURK. W6're a week away from having our 25 witnesses fly down here, that's why.
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25079 1 (The Board confers.)
2 JUDGE McCOLLOM: Is Harris available all of the 3 week of the 19th?
4 MR. TRAFICONTE: Harris is avai;able at any time 5 during the week of the 19th, yes.
6 JUDGE SMITH: And how about the 26th?
7 MR. TRAFICONTE: He's not available this week, nor
, 8 is he available on the week of the 26th.
9 JUDGE SMITH: At any time?
10 MR. TRAFICONTE: Any time those two weeks, right.
11 JUDGE SMITH: Would he be available if we had to 12 hear him down in Washington?
13 MR. TRAFICONTE: The week after this, yes. But 14 we're trying to schedule everything before the end of June.
15 JUDGE SMITH: All right. I just want to know what 16 our --
17 MR. TRAFICONTE: Mr. Harris is based in 18 Washington.
19 JUDGE SMITH: He is.
20 MR. TRAFICONTE: He is in Washington.
21 Your Honor, by the way, so is Dr. Carter. The 22 last witness is also in Washington.
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23 MR. DIGNAN: Your Honor, it might assist 24 evarybody. I canvassed my people as to how long our cross-25 examination of Mr. Harris will be, assuming he goes on. And ;
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25080 1 the general feeling was it would not be a full day. And the 2 Staff indicates that they don't think they have very much.
3 I don't know if that helps anybody in'--
4 MR. TRAFICONTE: Well, that's why he's there on a 5 Monday. We wanted him to come in Monday. We were hoping 6 perhaps he could come in at 1:00 and possibly be done by the 7 end of that day. And then the next thing on the agenda is 8 the cross-examination of the next Panel No. 20. .
9 Now, obviously if that were completed before the 10 end of business on Tuesday, we could start ETEs at that 11 point. There's always that flexibility in the schedule.
12 JUDGE SMITH: What's Panel 20?
13 MR. TRAFICONTE: That's the Applicants' training 14 panel.
15 And, in fact, Mr. Fierce --
16 JUDGE SMITH: Why couldn't that slip over, too?
17 MR. TRAFICONTE: Yes.
18 JUDGE SMITH: And then move the ETEs up 19 immediately following Harris?
20 MR. TRAFICONTE: Yec. Mr. Fierce just suggested 21 the same thing. ,
22 We could put Applicants Panel No. 20 out of order 23 and put them after whenever the ETEs -- that's absolutely ~
24 correct. We could put them into the following week. They 25 are available.
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25081 1 MR. DIGNAN: Who?
2 MR. TRAFICONTE: Applicants' Panel 20.
3 MR. DIGNAN: They are always available.
4 You know what you also haven't got on here is 5 Adler on training.
6 MR. TRAFICONTE: Adler is going to be defending 7 training when he's on during --
. 8 MR. DIGNAN: Oh, no, no, no, no. He has to go 9 ahead of my panel.
10 JUDGE SMITH: Okay. Look.
11 MR. DIGNAN: That's the rules.
12 JUDGE SMITH: However, the basic problem raised 13 by Mr. Turk seems to be resolved if Harris is completed on 14 the 19th.
15 MR. TRAFICONTE: Yes.
16 JUDGE SMITH: How does the problem that you raise 17 affect the scheduling of No. 20?
18 MR. DIGNAN: Adler's second piece, the piece that 19 isn't listed on here. Adler has two pieces.
20 JUDGE SMITH: Has to go first.
21 MR. DIGNAN: That has to go ahead of 20. '
22 MR. TRAFICONTE: Well, that would actually do 23 that.
24 In other words, we would solve that problem 25 inadvertently in the same way. If Applicants' Panel was 9 Heritage Reporting Corporation (202) 628-4888
25082 1 deferred until after the ETE panel, and Dr. Adler defended 2 both his ETE testimony and his training testimony, 3 Applicants could at that point decide whether to go -- I 4 take it's the decision to go further -- they would have that 5 choice at the end of the ETE Fanel.
6 MR. DIGNAN: That's fine with me.
7 MR. TRAFICONTE: That's fine.
8 MR. DIGNAN: As long as he goes ahead. .
9 MR. TRAFICONTE: Now does that satisfy Mr. Turk?
10 I mean, the best we can say is right after Dr.
11 Harris does ETEs. So it's really up to their cross-12 examination of Dr. Harris.
13 MR. TURK: Your Honor, I think that solves a good 14 deal of my concern, as long as I understand we are looking 15 to close ETE testimony in that week.
16 MR. TRAFICONTE: No, we're not -- that's the 17 problem. Why would we --
18 MR. TURK: Well, then, why don't you put Harris on 19 Friday and let's give --
20 MR. TRAFICONTE: Because there is absolutely no 21 gain. We are not going to be able to estimate at this point ,
22 when the ETE panels are over with, 23 JUDGE SMITH: We haven't yet. ~
24 MR. TRAFICONTE: I mean, we have never been able 25 to do that with any witness. Why would we be able to do it Heritage Reporting Corporation (202) 628-4888
25083 1 with the most difficult set of issues? I don't know.
2 MR. DIGNAN: Well, this is the problem.
3 The ETEs keep being brought up by the Commonwealth 4 as the most difficult set of issues. And for the life of 5 me , I don't understand why.
6 I'll be, as usual, maybe two hours with Adler, and 7 then you would go on ad infinitum with the minutia of the
. 8 ETEs.
9 The ETEs were crossed -- I am reminded by Ms.
10 Wardlow -- for nine days they crossed the ETE witnesses up 11 in New Hampshire. And ETE just isn't that big an issue.
12 MR. TRAFICONTE: Your Honor.
13 MR. DIGNAN: As the Board has made clear in its 14 decision, as the Board has made clear from the bench, if 15 somebody doesn't like the ETE, if the governor of the 16 Commonwealth wants another ETE, you can put in another ETE.
17 JUDGE SMITH: Well, Mr. Dignan, I don't think you 18 are convincing them and it doesn't do you any good to 19 convince us.
20 MR. DIGNAN: Well, no. It does if I could get you 21 to put a limit on the cross-examination of the ETE panel 22 before we start, Your Honor. And I think that would be more
~
23 than in order in this case for you to announce beforehand 24 that, in the Board's judgment, this cross-examination ought 1
25 to be able to be done in X days, and that's it.
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25084 1 And I think we are at the point in this hearing 2 where it would not be untoward for the Board to --
3 JUDGE SMITH: We have heard an awful lot about 4 ETEs, an awful lot.
5 MR. TRAFICONTE: Your Honor.
6 JUDGE SMITH: And to think it was almost ,
7 stipulated.
8 MR. TRAFICONTE: I just want to note that I'm
- 9 convinced this is the purpose of Mr. Turk's complaint about 10 the schedule to begin with.
11 Mr. Dignan has at least come out and said point 12 blank that he wants a restriction on the scope or length of 13 the cross.
14 There are several issues open, including returning 15 commuter issues from the New Hampshire proceeding. And I 16 would also --
17 JUDGE SMITH: I wonder if we haven't lost 18 jurisdiction over that.
19 No, I guess not, not that.
20 MR. TRAFICONTE: I would just note that we have 21 presently ucheduled this for two and a half days. I don't -
l 22 think that's an unreasonable length of time in light of the 23 amount of material presently scheduled. ~)
1 24 MR. DIGNAN: It's not the two and a half you hear
]
25 me griping about.
I 1
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25085 1 MR. TRAFICONTE: Right.
2 MR. DIGNAN: It's your statement that it may roll 3 on after that.
4 MR. TRAFICONTE: No, there is no statement like 5 that. This is the schedule we are prepared to live with. I 6 have already indicated if Monday is blank --
~
7 MR. DIGNAN: All right. Then you will limit the 8 cross to --
9 MR. TRAFICONTE: No, we will not agree to a prior 10 limitation to the cross. No.
11 JUDGE SMITH: Let's shoot for this. Let's shoot 12 for starting the ETEs on Tuesday morning. And we will defer 13 whether or not we put a time limit based upon the 14 productivity and the level of importance of the cross-15 examination.
16 I do agree that it is time to - you know, we have 17 used time limits very, very sparingly in this proceeding, 18 and perhaps not as often as we should have.
19 But what more can be said about ETEs that two and 20 a half to three days couldn't say?
21 You know, a lot has been said.
22 MR. TURK: Your Honor, I want to point out that 23 it's a little bit different situation here.
,I 24 JUDGE SMITH: Are you going to do the cross-25 examination on ETEs?
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25086 1 MR. FIERCE: Well, you say "the cross-examination" 2 on ETEs. Let me just tell you what the line up is here.
3 Dr. Adler is now coming in. He's got three pieces 4 of testimony he will be cross-examined on: a piece on ETEs 5 and a piece on returning commuters. I'm assuming this is 6 when we are going to get into this issue that he has filed.
7 And he has a separate piece of testimony, very short, on 8 training for traffic guides. Three pieces of testimony he .
9 gets to be cross-examined on.
10 Lieberman comes in. I understand he's got a piece 11 on -- that panel is an ETE panel. And there is a piece from 12 Lieberman on returning commuters. Two pieces of cross-13 examination there.
14 And then Dr. Urbanik has, I believe, three pieces.
15 He has a left over piece on traffic management that has 16 never been crossed. He has a piece on ETEs.
17 And does he have a piece now on returning 18 commuters as well, if my memory --
19 MR. TURK: Well, it depends on whether the Board 20 wants to hear testimony on returning commuters or accept it 21 by affidavit.
22 But Mr. Traficonte thinks two and a half days 23 should do it. -
24 JUDGE SMITH: We already indicated that the 25 affidavits don't resolve our problem.
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25087 1 MR. . TURK: So you will take the affidavits a's 2 testimony and be cross-examined?
3 JUDGE SMITH:- I don't know what the plan was.
4 MR. TURK: I don't think'there'had been a plan.as l
l 5 far as I know.
l 6 JUDGE SMITH: Well, we read the affidavits and'the 7 briefs. We ispued an order, and we had a discussion here.
, 8 I thought my memory was that we said that we can't resolve 9 it on the affidavits: that the Attorney General had 10 broadened the issue beyond the area in which we kept 11 jurisdiction.
12 The last was that you wanted to know if.we wanted 13- Urbanik, and we hadn't told you.
14 I just assumed it was going tua be resolved in 15 cross-examination on -- well, I think we resolved it. It 16 was going to be cross-examined on the portions on the 17 affidavits, but we narrowed the issue as.to which Adler's 18 affidavit need be considered.
19 MR. DIGNAN: What we are going to do is offer a 20 piece -- we'll have it, I hope, tomorrow -- by Lieberman, 21 which is going to be confined to the narrow issue, and will 22 have new runs, that kind of stuff in it. And that's what we 23 are going to defend it on.
24 In addition, it's going to describe for-the Board 25 in some detail. Your Honor has expressed an inquiry of,Lyou
%. )
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25088 1 know, just how difficult is it to model this problem and the i
2 piece will deal with.that issue also.
3 JUDGE SMITH: One of the' questions I would have 4 asked Dr. Lieberman is if -- there are certain aspects of 5 Urbanik's testimony that I don't think was covered by 6 Lieberman or by Adler that I think is material. And I 7 didn't want to bring Urbanik in for an area which could 8 possibly be covered by the witnesses that are going to'be -
9 presented. So I was going to ask him some questions from 10 Urbanik's affidavit. I'm not ready to specify, however.
11 MR. DIGNAN: I'll just advise him to be up to i 12 speed on that affidavit and able to respond to whatever 13 questions.
I 14 MR. FIERCE: Your Honor, and I just heard Mr. j l
15 Dignan say that they are coming in with another piece 16 tomorrow which is going to have new runs and I don't know l
l 17 what else in it.
18 All I can say is we certainly want an opportunity ;
19 to take a look at whatever those runs are and study that 20 testimony.
21 Maybe one way we can help resolve our ETE .
i 22 scheduling problem is to pull out the returning commuters 23 issue from that week of the schedule, give Dr. Adler time to 24 take a look at whatever these new runs are, go through the 25 testimony on ETEs and on traffic guide training and on Dr.
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25089 1 Urbanik's leftover traffic management piece, and hold the 2 returning commuters issue for the end of the hearing when we 3 have had an opportunity to take a look at whatever it is 4 that the Applicants are now going to come in with.
5 MR. DIGNAN: There is going to be nothing that 6 exciting.
7 MR. FIERCE: There are going to be some new runs.
. 8 I want take a look at them.
9 MR. DIGNAN: I am going to right at this point 10 just plead with the Board as it considers this whole matter 11 as to how much the -- you know, the thing we have forgotten 12 in this case a long time ago, or at least I have forgotten, 13 I will accuse nobody else, is the rules are clear in this 14 Commission; such cross-examination as the Board feels is 15 necessary to assist it in resolving the issues before it.
16 And all I can --
17 JUDGE SMITH: Well, I'm aware of that, and I'm 18 aware that the boards are expected to limit cross-19 examination so long as its productive.
20 The difficulty with setting any mechanical limit
. 21 to cross-examination, and that is, the adversary has a lot 22 of influence on the timing. The adversary can use up a lot
~
23 of time. I mean if you make a lot of objections, a lot of 24 arguments, then you eat into your adversary's time.
25 I don't know a way that is easy to apply 1 1
1 l
O Heritage Reporting Corporation (202) 628-4888
25090 1 mechanical limits on cross-examination. I do believe, 2 however, that the level of cross-examination -- I'm 3 directing it to Mr. Fierce now -- the level of cross-4 examination which even got down to where the man is going to 5 park his automobile that we experienced before will not be 6 tolerated. It just will not be tolerated.
7 And not that that is the level down to which we 8 will allow, but I'm telling you we are just fed up of you -
\
9 wasting the Board's time with things that just pop into your 10 head as you are going along cross-examining. And we are not 11 going to tolerate it anymore. Don't even think about coming 12 close to that level of cross-examination.
13 We will begin, as indicated. We will set time 14 limits or not depending upon what we see the productivity of 15 the cross-examination, how the adversaries are objecting, 16 the level of their objections, how much time they are taking 17 up. We will try to look at the whole picture.
18 But generally speaking, Mr. Dignan, you are right.
19 We've heard so much on ETEs. We've indicated in our 20 decision our view about the influence upon protective 21 actions, and we said a lot about them in our decision. And .
22 there is nothing that's happened so far to change our view. j
. 1 23 Anything further before we get to your arguments j 24 on the exhibits?
l 25 MR. DIGNAN: Yes, Your Honor.
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25091 1 We have a corrected, if this would be the 2 appropriate time, a corrected version of our 17 to 3 distribute that picks up a number of --
4 JUDGE SMITH: All right.
5 That's another matter on the Board's agenda. We 6 had Ms. Sneider testify Friday, and your motions didn't 7 prevail in entirety. As a consequence, you decided that you
. 8 would have to proceed and present your panel on 17, as I 9 understand it.
10 MR. DIGNAN: Yes, Your Honor.
11 JUDGE SMITH: Then that made it necessary then for 12 the issue placed in there by the Board -- I'm not using 13 these words in a studied fashion -- the supplement to 17, 14 and that's got to go on.
15 It seems like that issue is coming into the case 16 by random events not related to the subissue involved. I 17 mean, for example, Ms. Sneider's testimony just has nothing 18 to do with overall capacity. It was just the mechanics of 19 running it through.
20 Now, how does it happen now we're going to get 21 into parking space availability as a consequence of 22 testimony that had no relationship to it except that that 23 seems to be events over which we all have lost control or 24 something.
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25092 1 candidly for you as to why it's coming in.
2 If you recall, in some sense it is the way the 3 events came out. As I indicated to Your Honor, if any of 17 4 had to go, I would save the Board having to revisit the 5 question of the supplemental piece, because I'll put in on.
6 Because my purpose, my only purpose in bringing the whole 7 question up initially was, you know, it's a time saver if I 8 don't. Now, 17 has to go in. -
9 On the supplemental one, as I indicated to the 10 Board, were I without a Board's suggestion that the Board 11 wanted to hear about this, and I'm not trying to get into 12 whether it was sui sponte or what -- for whatever reason I j 13 would not put it in.
14 My problem is I am reluctant in any case, as I 15 hope you deem prudence if nothing else, when I have had an 16 inquiry from the Board to us for information, to ever pull l
17 that without essentially the permission of the Board to do 18 so, or at least a strong indication that'the Board will not 19 be upset if I don't answer the inquiry.
20 Now if the Board tells me that, I would pull it.
21 But then I imagine my good friend over here is going to want .
22 to be reheard on the question of whether you should have ]
. 1 23 allowed him his late-filed contention -- ]
24 JUDGE SMITH: No.
25 MR. DIGNAN: -- right, wrong or indifferent.
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-^ 1 Right, wrong or indifferent, I think L it's Mr. .Traficonte's
( ,) 2 view that your decision on his. late-filed contention was 3 influenced.by-the fact that you were saying to.us, we the 4 Board want to hear about this. So all I'm.saying is that 5 goes in to solve the Board revisiting it.
6 If the Board is telling me they would just as soon 7 it didn't come in,'then it won't come in. And then I guess
. 8 I have to put the ball in hie-court as to whether he wishes 9 to ask you to revisit it.
10 JUDGE SMITH: I don't see any need to revisit' 11 anything. This issue of parking. space . at the monitoring, 12 centers has had four or five incarnations which we have 13 recited in our memorandum following the prehearing 14 conference. ;
15 It came up again-in the 11ght of what we deemed to -
16 be a late-filed contention.
17 We reviewed all of the documents. We set'a date,-
I 18 I believe it was some time. late in January or.early in- 1 J
19 February, as to which we charged the Interveners with a need 20 to file a late-filed contention. I mean the time for which
. 21 we would measure good cause for late filing.
22 And then we said we will short circuit the matter I 23 because, and this is the reason it doesn't come out very l 24 clearly, because it may be that they don't have good cause
! 25 for a late-filed contention.- But when you intend to l l
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25094 1 reintroduce an issue which had previously been excluded, 2 which you intended to do, then we have to allow the evidence 3 to follow the trail.
4 Now, this was not a clean, crisp situation. It 5 really is a judgment call. If we are going to allow you to 6 come in with the extra monitoring spaces and not be examined 7 on the entire system, we believe they should have raised the 8 parking spaces earlier. -
9 But since all of these various factors could not 10 be weighed and measured with mathematical precision, we just 11 took a shortcut.
12 And now we see it's coming in for reasons that are 13 totally unrelated to the issue. It's totally unrelated.
14 MR. TRAFICONTE: If I might be heard on this just 15 very briefly.
16 I was here in the hearing room on the day that the 17 Board acted on our motion. It was my understanding that the 18 Board had reviewed the five standards for late filed, made 19 various comments and stated its findings as to the five 20 standards. But ultimately did not either grant or deny the 21 motion for the late-filed contention. But instead of that .
.1 22 issued -- however you want to characterize your order to the 23 Applicants to address the issue identified in the late-filed 24 contention -- through testimony.
25 I'm not sure, frankly, where the Chairman is Heritage Reporting Corporation (202) 628-4888
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25095 1 going. ,
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5 2 J7DGE SMITH: Well, let me say where we were. 1
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'I 3 We would have allowed the issue to be heard and l 4 argued only if the Applicants proceeded with their 5 testimony. See, we were not going to allow them to go and j 1
1 6 claim credit for something and not allow.it to be attached. '
7 MR. TRAFICONTE: Yes. .
. 8 JUDGE SMITH: As compared to having a contention 9 accepted which as a matter of right you had to have ,
1 10 litigated.
11 See, it's when they reintroduced the question ~into i 12 the litigation, we're not going to foreclose you following l 1
13 the evidentiary trail. See, that was the thing that' pointed 1
g 14 to us that we didn't have to measure all these things as 15 precisely. And we know they all can't be measured that well 16 anywcy.
17 MR. TRAFICONTE: The problem, Your Honor, is'that 18 the way I heard it,.and I think the way Mr. Dignan heard it 19 was that he had to then supplement -- he in fact has 1
20 supplemented his Panel 17 --
. 21 MR. DIGNAN: Right. )
i 22 MR. TRAFICONTE: -- with additional testimony. I
~
23 JUDGE SMITH: Right.
24 MR. TRAFICONTE: Which, when we have read it, >
25 obviously, we have asked for the right to file rebuttal.
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25096 1 It's the notion of the supplemental testimony that 2 I think is at issue, because --
3 JUDGE SMITH: Right.
4 MR. TRAFICONTE: -- we had understood that,'in 5 effect, as having -- it's a procedural mechanism for the 6 issue we had in our late-filed contention finding its way ,
7 into the proceeding.
8 And I guess ultimately the Board has to resolve -
9 that question. Either the issue we identified in the late-10 filed contention is part of the proceeding or it isn't.
11 And when the Applicants c1fer their supplemental 12 to 17, our view is that the issue then is in the proceeding.
13 JUDGE SMITH: If you had not withdrawn your 14 Applicants' Exhibit 17, would you have proposed findings, 15 take credit for the additional monitoring centers? '
16 MR. DIGNAN: Not if I --
17 JUDGE SMITH: Pardon?
18 MR. DIGNAN: No.
19 JUDGE SMITH: Right.
20 How did Ms. Sneider's testimony bear upon that 21 issue right there, that narrow issue right there? - I l
22 She brought into -- 1 1
23 MR. DIGNAN: In candor, Your Honor, I can't think 24 of why it did. And what you are forcing me to do, and which 25 I plan to do, is to revisit what I've been thinking.
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-l 25097 1 1 Let me explain something to the Board that'might.
f
( ) 2 be helpful in seeing what happens.
3 The testimony.as drafted, each piece-of testimony 4 we have put.into this case, was-drafted against.the. .)
l 5 contentions as opposed to the testimony that was actually 6 offered as I'm sure you will appreciate.
7 After the case comes in, we start making our-
. 8 decisions, and.I. hope you' appreciate they-aren't always that j 9 easy to make, because you don't know the exact thing. And l
{
i 10 the second thing is when you. err,. you try to err on the side .
11 of covering your tracks, not limiting them.
12 What I candidly have not done, I admit, I got- i
)
13 myself in a mode of, well, if Sneider goes in, 17 goes in.
14 I have not reexamined 17 with in mind what Your. Honor has q 15 just asked me, precisely what has the Sneider testimony put 16 in and how much 17.and 17 (a) is needed in light of it. e 17 Now, the short answer to the supplemental piece is 4
18 "none of it". That I'm clear on. What-I'm not clear on is
)
19 how much, if any, of 17 I could cut out with that' point of 20 view. But I am more than happen to revisit that problem
, 21 post haste after the -- or, indeed, earlier than.when the 22 hearing concludes because I plan to exit right after I argue
- l 23 these motions, and I'll take a look at it right then and 24 there. 4 25 JUDGE SMITH: We have no reason that'I can see Heritage Reporting Corporation s
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25098 1 that -- we have no new information. If 17 goes in, we have 2 no new information to cause us to change our ruling that if 3 that goes in, the parking spaces can be addressed in that 4 connection, although we are not saying that you had to put i
5 the evidence in to begin with. It's only that you can't 6 take credit for expanded monitoring capacity without thereby ,
7 reintroducing the issue timely raised by the Attorney 8 General, which was dead, dead, dead several times. That's -
1 9 how we got to where we are now.
10 We said, to cut the matter short, the Board is 11 going to reject the motion to file late-filed contentions.
12 We were going to require additional evidence with respect to 13 the filing of the Rebuttal Testimony No. 17. You wanted a 14 discussion of the parking problems. That was the sence. )
15 We did not accept it as an issuc to be raised as a 16 contention, thereby, giving the Interveners a right to have 17 the matter litigated. Their contention was for the fourth 18 or fifth time rejected after we had analy=ed all of the i
19 elements.
20 But our reasoning was, and I agree that it's not 21 well spelled out here, it's an oral ruling. Our reasoning -
22 was we're not going to have you put a panel up there and 23 say, we've got all these monitoring stations and it's a 24 system that will handle the input, the processing and the I !
( 25 output in a smooth way without allowing them at least to I
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25099 1 cross-examine on.the, issue. You are, in:a sense, 2 reintroducing the issue.
3 I can see your argument can very well be, yes, but 4 we reintroduced that issue back in January. .That-was the' 5 time to raise objections to it.
6 Well, this is not a perfect world. The ruling we 7 made tried to accommodate what we thought was a crude, sense
. 8 of due process. The rule doesn't_always fit' neatly'into 9 these categories.
10 But they lost'their right to raise-the issue 11 alone, standing alone.
12 MR. DIGNAN: See, Your Honor, the problem really 13 kicks out this way.
14 You asked me the question if we didn't put this l 15 in, would I propose findings on the extra monitoring. Jud 16 the answer is "no".
a 17 But the problem is, as my people are saying to me, 18 what we need the extra monitoring for is to handle the 19 Board's finding in the PID as to what the population is. l 20 You see, when the Board kicked the population up 1
, 21 to -- I forget the numbers -- but the Board raised the peak, l 22 and by that I don't.mean " peak of peaks", above what we had I 23 planned on, and therefore that's what the extra stations are 1
24 being put in for is to account for the Board's ruling as to ,
i 25 the population. ,
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25100 1 I still don't think that creates a parking issue, 2 but I can see where it might. And this is --
3 JUDGE SMITH: Well, how about another approach to 4 it.
5 MR. DIGNAN: So in other words, what I am saying 6 to you is I can't walk away from the extra monitoring ,
7 stations in light of the partial initial decision on the New 8 Hampshire side.
- 9 JUDGE SMITH: I understand, but how about this 10 approach to it.
11 The Onsite Board with Judge Bloch looked at an 12 issue that somebody was going to raise, can'the buses turn 13 around, was that it?
14 And he says, well, we're not going to sit here and 15 litigate whether buses can turn around. Go out and see if 16 they can turn around.
17 What is there so complicated about the parking 18 around the center that we have to resolve it in the hearing 19 room? I mean is it that big a deal?
20 I want to know why they have been saying all along 21 -- I mean, what is the issue here? We'll go over and look .
I 22 at it if we have to.
23 MR. DIGNAN: I don't know if Your Honor has had an 24 opportunity to read the supplemental piece which has been 25 filed. You will see we don't think it's an issue.
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25101:
1 JUDGE SMITH: That's right.. You say there's a lot 2 of parking, enough parking.
s
~3 MR..DIGNAN: Yes.
4 JUDGE SMITH: Yes.
5 It seemed to be pretty' simple. We yet don't know
\
6 the basis of their allegation, which is.another thing. 'We ]i 7 have to know the basis of their allegation that there' -is not
. 8 enough parking.
9 But is it not something that ' can be resolved orr a '
10 site visit?
11 You take them out and say, see that one, see this 12 one, see that one over there, see these, see those.
13 MR. FIERCE: I would make that as a motion, Your 14 Honor, and ask that.you --
l
\ 15 JUDGE SMITH: No,-not us.; You come in and, you.
16 know --
17 MR. FIERCE: Well, we have a, substantial 18 difference of opinion about how one can park as many cars as 19 they think can be parked in the small space.that they have 20 available. And I have Dr. Adler preparing testimony on l 21 this.
j 22 JUDGE SMITH: And Dr. Adler is. going to come in "
23 here and I know he's going to say, you know, I think they '
24 are right. They can probably park those cars in that small 25 space. I can just predict he's going to find that.
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25103 1 MR. FIERCE: That he thinks they can?
2 JUDGE SMITH: Yes. I know.
3 MR. FIERCE: Well, that's interesting, because I 4 talked to him just the other day, and he said he thought the 5 study they had done to estimate the number of cars that 6 could be parked there was a piece of garbage.
7 JUDGE SMITH: Well, here we are. Everybody in 8 this room parks cars from time to time. And I don't need ,
9 Adler to tell me how to park a car, and neither do you. You 10 can go and park your own cars.
11 Or how do we say it up here?
12 MR. DIGNAN: " Park the car."
13 JUDGE SMITH: " Park the car."
I 14 (Phrase imparted with local inflection. )
15 (Laughter) 16 JUDGE SMITH: And save the Board --
l 17 MR. DIGNAN: "In Harvard Yard."
18 MR. FIERCE: Your Honor, it happens to be a 19 serious issue. They really can't park e.nough cars in that 20 lot, particularly the number that they say they can. They l 21 are using a number of square feet per car, 250 square feet. .
22 It just can't be done, Your Honor. It can't be done.
23 I've got an expert, this happens to be his field. -
l 24 Dr. Adler advises people all over the country who are 25 building parking lots.
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25103 1 JUDGE SMITH: Well,.I do it lots and lots of' 2 times.
3 MR. FIERCE: This is an unmarked lot, Your Honor.
4 JUDGE SMITH: Two hundred and fifty square feet, l
5 right?
6 MR. FIERCE: Which is not enough square footage in 7 the kind of lot which --
. 8 JUDGE SMITH: I'll give you 50 square feet and-9 still do it. As a matter of fact, I'll.give you'70 square 10 feet and still do it.
11 MR. FIERCE: Your Honor, you have to think about.
12 how you are going to line the cara up with rows and aisles.
13 JUDGE SMITH: I know. All right.
14 MR. FIERCE: And whether you are going to park --
, 15 JUDGE SMITH: What can be done to avoid having' j
(
16 Adler come in here and tell us how to --'you know, what we j 17 are pretty familiar with?
18 MR. FIERCE: I don't know what can be done, Your 19 Honor. I think maybe the experts need to go --'the !
20 Applicants need to go get an expert on this rather than
. 21 having their own staff people just make some estimates.
l 22 Show us how they intend to do it, to give us a diagram of 1 l
~ l 23 where each care would be parked in that lot with where the l 24 rows and the aisles are. !
25 If they can do that, perhaps we can move 1
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o 25104 1 somewhere. We just don't think they can do it. Dr. Adler 2 doesn't believe that with one traffic guide and the kind of 3 turnover that they are expecting they are going to be able 4 to park that many cars there.
5 MR. DIGNAN: Well, wait a minute.
6 Hy understanding from tae word go was the Board 7 made it clear, even when the Board has asked for this B information, that we weren't going to get into traffic -
9 management.
10 JUDGE SMITH: That's right.
11 MR. DIGNAN: What we were going to get into is was 12 there enough square feet out there to put enough cars to 13 keep the monitoring station able to park.
14 MR. FIERCE: You still have to have rows and 15 aisles unless you are going to pack them in like sardines.
16 That's the only way Dr. Adler says it could be done.
17 MR. DIGNAN: Well, I don't know if we're going to l 18 pack them in like sardines, Mr. Fierce. But I know one 19 thing. We're talking here about an emergency. You know, we )
20 are not running a first-class hotel. We're taking care of 1
21 people in an emergency situation. .
22 MR. FIERCE: Let's not belittle it now, Mr.
l . >
l 23 Dignan.
24 It happens to be a fact that because of this issue 25 they cannot run 20 percent of the population through their l
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25105 1 monitoring centers in 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. 1 hey are very afraid of 2 this issue, Your Honor. They don't have the parking.
3 MR. DIGNAN: I was afraid before the issue --
4 MR. FIERCE: I have some pictures in my briefcase 5 I'd be happy to show you of that lot and what it looks like 6 right now if that would help you, if you don't want to take 7 a look. There is a real parking problem up here.
. 8 JUDGE SMITH: All right. Whatever happens, I can 9 tell you we're not going to spend a lot of time.
10 MR. FIERCE: I have a very short piece of 11 testimony I will be filing in a couple of days from Dr.
12 Adler on this parking issue.
13 JUDGE SMITH: He's going to be addressing the 14 Board that has parked cars lots of times under informal 15 circumstances and we won't need a lot of time. We just want 16 to hear what he has to say.
17 I don't have any suggestions on how to resolve it.
18 I guess we are going to have to follow through.
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25106 1 MR. TURK: Your Honor, may I ask: Mass AG is 2 asserting there is some reason why people can't park on 3 adjacent streets.
4 JUDGE SMITH: I don't know.
l l 5 MR. TURK: What's the magnitude of the problem?
6 Back in the days of counting spaces for the 7 beaches they were willing to count every tire mark on a 8 piece of grass and say, there is where you have to expect
- 9 the car is going to go.
E 10 All of a sudden now they need lines and rows in 11 order to have a parking lot.
12 MR. FIERCE: Well, you know, if they want to come lll 13 in with an entirely new plan, that's their prerogative.
14 JUDGE SMITH: Let's hear what Adler says about it.
15 MR. FIERCE: As it stands right now they have a 16 system where you pull into this lot and get your car 17 monitored. And it is from that point that you were diverted 18 either into a dirty car lot or a clean car lot on either 19 side of the reception' center; that's the plan.
20 JUDGE SMITH: Anything further on that point?
21 (No response) .
22 JUDGE SMITH: Now we have your exhibit 112. And
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23 to review where we were you had commended to our reading MAG 24 Exercise Exhibit 11.
25 Mr. Dignan had argued that 19-D was a specificity Heritage Reporting Corporation (202) 628-4888
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l 1 for all of the instances set out in 19,'which by implication:
J 2 would include the instances set'out in MAG EX 11 which is 3 incorporated in 19.
l g
4 You argue that the language alluded to by Mr. :1 5 .Dignan'in Bases 19-D, the introductory clause.which states:
6 "In all the instances described above." That was intended'
.7' to be yet a new idea, a new concept. Although it involved 'l
. 8 all the instances described above, they all had a separate 1 9 distinct infirmity. And.that is they depended upon METPAC.
10 We promised'that we would go back to MAGLExhibit )
i 11 11 and see if MAG Exhibit ~11,'which relates to offsite l 12 consequences,.a faulty protective action decision-making 13 onsite, had the degree of specificity'we would:be looking 14 for. I 15 That's what we have done. I.mean, at least two of 16 us have. The Board has done that.
17 Now we're ready to hear your argument.
18 MR. TRAFICONTE: I would just add one final point,_
19 actually. I was going to recap that, but that's precisely ]
20 where the argument goes.
21 The final point I would make is that the structure l i
22 of MAG Exercise Contention 19 has a two-fold structure. l i
23 On the one hand it realleges everything that EX-11 :
I 24 said that was wrong with the. PARS that were actually. .l 1
25 formulated. It realleges all of those. defects, And assigns
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25108 1 those defects now in addition to the offsite PAR decision 2 criteria, it assigns those defects to the onsite PAR 3 decision criteria.
4 And that's what the purpose of A and B is. It's, 5 in effect, realleging the same defects.
6 "D" adds an additional -- and it has a specific 7 basis letter and it is a separable basis that alleges an 8 additional defect with the onsite decision criteria, which -
9 is that METPAC is, at least, part of the problem. That's 10 unique to exercise 19.
11 But the other allegations about the defects in the 12 PAR decision criteria are really the same as between 11 and 13 19.
14 The final argument I would make is that if the 1
15 Board has accepted the logic of the way 19 stande to 11, 16 then the fact that the Board has admitted for litigation in 17 the proc ~eding the Exercise Contention 11, and we have filed 18 testimony as has the other side -- it has been cross-19 examined -- to the extent that exercise 11 has been found to 20 have the requisite basis and specificity and has identified 21 the issues for litigation, then there should be no issue -
22 that 19 has the requisite basis and specificity because 19, 23 at least as to A and B, realleges everything that -- running 24 to the onsite decision criteria -- realleges everything that 25 exercise 11 had alleged with regard to the offsite decision Heritage Reporting Corporation (202) 628-4888
25109 1 criteria.
2 JUDGE SMITH: If I understand your argument 3 correctly, I agree with it. But in the last analysis, what 4 we're looking for in both EX-11 and EX-19, with the 5 exception of 19-D and those aspects of it which you find in 6 EX-11, we are looking for the required specificity that puts j 7 the parties on notice and the Board on notice as to what the l
8 failures of the process onsite by which protective action 9 recommendation decisions are made.
10 And except for the METPAC thing, we see no 11 specificity. We're looking for you to point out, if you 12 can, where in any of that language we can -- you can point 13 to us where those people making those judgments onsite using 14 the information available to them, demonstrated a 15 fundamental flaw in the plan.
16 MR. TRAFICONTE: I will do that --
17 JUDGE SMITH: Except METPAC is clear, you said.
18 We couldn't find it. None of us could find it.
19 MR. DIGNAN: I couldn't.
20 MR. TRAFICONTE: As I said on Friday, the place
. 21 that you will find it, and this is the point I wcnt to make 22 sure that we're on the same wave length, the place you will 23 find is in --
24 JUDGE SMITH: That can be by incorporation --
25 MR. TRAFICONTE: Yes. You have to find it ir Heritage Reporting Corporation N
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25110 1 exercise 11.
2 JUDGE SMITH: Give me the words?
3 MR. TRAFICONTE: I will now direct the Board's 4 attention to-where I think the words are. But I'm going to I 5 be in Exercise Contention 11. [
\
l l 6 JUDGE SMITH: Right. That's where we are. ,
7 MR. TRAFICONTE: Okay.
8 That's on page 108. And it is essentially -- we -
l 9 can do this -- it's in Basis B of exercise 11, each of the l
10 numbered paragraphs. Each of the numbered paragraphs sets I l
11 forth with specificity and basis the problems in the l l
12 decision criteria used by the offsite staff. i l
13 MR. DIGNAN: I'm sorry, not the onsite.
l 14 MR. TRAFICONTE: Yes. I've already acknowledged j 15 that it alleges the problems used in decision criteria used l l
16 by the offsite staff and exercise 19 incorporates that and 17 makes the same critique for the onsite staff.
18 JUDGE SMITH: You're slipping off. You're sliding 19 off.
20 MR. TRAFICONTE: No way.
21 MR. TURK: There is no logic there, Your Honor. .
1 22 JUDGE SMITH: If you look at Mr. Traficonte from :
23 where I'm looking at him, it sure looks logical. Now all we 24 have to do is find the words that you're alluding to.
25 And I think that you're going to have to admit
~
Heritage Reporting Corporation (202) 628-4888 l
l l ^
u 25111 1 that you don't, except for METPAC,-that you don't allege _in ,
\ 2 any of these bases the specifics:of how the onsite people J
3 error in arriving at their protective action 4 recommendations. j 5 Not the consequences. Not what happens when you q 1
6 get improper PARS used offsite. No, we know about that. .
f 7 That's what:we thought we were doing to begin with.
8 It is, how do they onsite -- what is wrong with i
9 the way they arrived at these PARS. That's what we're 10 talking about or isn't it? Is that not what we were talking 11 about? I thought we were, right?
12 MR. TRAFICONTE: I think'there's-always the line 5
l 13 to be drawn between adequate specificity and basis and l 14 evidence.
l
('~
g 15 JUDGE SMITH: Now we're looking for specificity.
16 Because I believe that Mr. Dignan's interpretation of'19-D l 17 is the better one. But we're willing to put that~
18 interpretation aside for the argument to test your argument 19 to see if specificity appears otherwise. You know, 20 otherwise the only specificity we can find, as I stated'many 21 times now, is in HETPAC.
22 But we were saying, Mr. Dignan's argument seems to 23 be the better one. But we will reserve judgment on it to 24 see if your argument can bear scrutiny. And to scrutinize 25 your argument, again, we are looking for where the other 1
{
1 i
Heritage Reporting Corporation t
s (202) 628-4888 ,
1 1
l 25112 l
1 bases, the other allegations are specific with respect to. {
2 the onsite personnel --
3 MR. TRAFICONTE: Yes.
4 JUDGE SMITH: -- in their process of arriving at ]
5 protective action recommendations.
6 MR. TRAFICONTE: Yes. f 7 JUDGE SMITH: That's what we're looking for.
8 MR. TRAFICONTE: We will go through the language. -
9 JUDGE SMITH: If it's not there, I'm sure that you 10 wili concede it.
11 MR. TRAFICONTE: If it is not there I will be the 12 first one to concede it.
13 But let me point out what I'm looking for.
14 JUDGE SMITH: Maybe not the first.
i 15 MR. TRAFICONTE: No, I will be the first. '
- 16 MR. DIGNAN
- Don't tell us what you're looking 1
17 for; read us the specific language.
18 MR. TRAFICONTE: Let me just make the general 19 comment one more time.
20 I am going to be looking at the language in 11, 21 which by its terms talks about the offsite personnel. .
22 JUDGE SMITH: Right.
23 MR. TRAFICONTE: We don't have to go any further.
24 JUDGE SMITH: I understand that.
25 MR. TRAFICONTE: But I am going to be reading that l
l l'
Heritage Reporting Corporation j (202) 628-4888 i;
25113 1 language as aimed at the onsite personnel's decision 2 criteria.
3 JUDGE SMITH: Right.
4 Are you going to say in here, the onsite people 5 blew it because they accepted the onsite PARS and those 6 onsite PARS were specifically flawed for particular reasons?
7 Is that what you're going to tell us?
. 8 I don't think you are, because we don't find it F
9 there.
10 MR. TRAFICONTE: Let's do it this way.
11 JUDGE SMITH: At least I didn't.
12 MR. TRAFICONTE: Let's take number 1 on page 108.
13 JUDGE SMITH: Yes, that looks like a restatement 14 of METPAC.
15 MR. TRAFICONTE: Paragraph number 1 is -- we can 16 read it, but the operant sentence is the third sentence, I 17 believe, or the second sentence. "This refusal to consider 18 a beach closing at the alert turned out to be a mistake."
19 In other words, the complaint is --
20 JUDGE SMITH: All right.
. 21 MR. TRAFICONTE: Now, this is a complaint aimed at 22 the offsite personnel. But the complaint is that they don't 23 consider at the alert a beach closing.
24 Now that language is incorporated by reference 25 into 19. Therefore, what is the specific complaint we're Beritage Reporting Corporation (202) 628-4888 u_________-_-___----_-- - '
25114 1 making about the onsite decision criteria? They don't 2 consider -- the onsite personnel does not consider a beach 3 closing at the alert stage.
4 MR. DIGNAN: Now, wait a. minute.
1 5 MR. TRAFICONTE: That's exactly the logic. Let me 1
6 just finish, you'll have the opportunity.
7 MR. DIGNAN: It's not incorporated that way. It 8 just simply isn't. . ll 9 MR. TRAFICONTE: Either it is or'it isn't.
10 JUDGE SMITH: Gentlemen, pause for.a moment and 11 let us look at it again.
12 (Pause to read document. ) I 13 JUDGE SMITH: Okay.
14 Now, how does that attack the methodology, and 15 we're talking about onsite protective action recommendation 16 determination methodology.
17 MR. TRAFICONTE: Yes.
18 JUDGE SMITH: How does that attack the onsite 19 methodology?
20 MR. TRAFICONTE: Paragraph 1 attacks it by saying 21 there is no criteria or there is no consideration given at ,
22 the alert stage for a beach closing.
24 MR. TRAFICONTE: Yes.
25 MR. TURK By the offsite organization.
Heritage Reporting Corporation 3 (202) 628-4888 j k
i
25115
,_s 1 MR. TRAFICONTE: Let's try to move forward in the 2 argument.
3 If 19 does not incorporate --
4 JUDGE SMITH: So you're saying that should be an 5 onsite decision, in addition to an offsite decision.
6 MR. TRAFICONTE: Yes.
7 JUDGE SMITH: It should have been an onsite 8 decision.
9 MR. TRAFICONTE: Yes. It was a defect in the 10 offsite criteria, as well as a defect in the onsite 11 criteria.
l 12 JUDGE SMITH: Isn't that a consequence rather than 13 a methodological infirmity?
7-~ 14 MR. TRAFICONTE: No. The procedures in the plan
\
\_ / 15 don't incorporate any consideration of the beach closing at 16 the alert stage. That's in the decision critoria in the 17 onsite plan.
18 And I cross-examined Staff witnesses in part in 19 that regard. That's part of the methodology or the decision 20 criteria in the onsite plan. We think that's faulty; that's
. 21 not what it should be..
22 We criticized it in 11. We incorporated the
~
23 criticism in 19. And Dr. Goble has testified to this.
24 JUDGE SMITH: I will agree that the failure to 25 consider the wind shifting, and if there is a failure in l /' Heritage Reporting Corporation l ( (202) 628-4888
-_----_-------___ft
25116 1 recommending beach closing at the alert level, if that is in 2 1 and it seems to be, it is thereby transferred to 19.
3 MR. TRAFICONTE: Okay.
4 JUDGE SMITH: I don't think that's-in dispute.
i 5 MR. TRAFICONTE: All right.
l l 6 It is very much disputed by Mr. Turk and Mr.
7 Dignan, I just want that to be clear.
l 8 JUDGE SMITH: Well, do you dispute that? Do you .
9 dispute that 11 is transferred to 197 10 MR. TURK: With respect to offsite?
11 MR. DIGNAN: It depends upon what Your Honor means 12 by transfer?
13 What I'm coming down on -- and I'm not sure it 14 changes the argument I would make.
15 JUDGE SMITH: I don't think it does.
16 MR. DIGNAN: But if you look at paragraph A on 17 page 113 which is the incorporation by' reference. If the l 18 intent was to say, we hereby attack the onsite for 19 everything we listed in 11, that was the most backwards way 20 of saying it that I can imagine.
21 What it says is: "As described in detail in ,
22 MAG EX 11 (incorporated herein by reference) the PARS issued 23 by New Hampshire Yankee's ORO were not appropriate in
- 24 numerous respects."
25 Now if what that was intended to say is, every Heritage Reporting Corporation (202) 628-4888
'25117
- 1. infirmity we alleged against_the ORO is now hereby alleged O
i
( ,/ 2 against the onsite organization, this is a heck of a way to 3 say it.
4 JUDGE SMITH: Because their argument is, because l
5 the mistakes originated there.
6 MR. DIGNAN:. I. understand the theory. I have 7 'always viewed 11 as a charge against the ORO thatLit simply-
~
8 accepted without questioning whatever the ERO gave them.
9 That was the basic contention.
10 And I looked at 19 as'the one that was going to 11 tell us what flaws cause the ERO to do what they did.
12 Otherwise there wasn't any need for two' contentions.
13 JUDGE SMITH: That's right.
14 That's where you get the METPAC.
( 15 MR. DIGNAN: Right. And that's where you get 16 METPAC.
17 What I'm saying I don't agree with, and I'm not 18 sure it changes the result _at least'from my point of view or 19 how I argue it is, Mr. Traficonte keeps saying we've 20 incorporated everything in 11 into 19. I i
. 21 Now, he incorporated everything in 11 in 19-A 22 specifically and used it aus describing the things he was 23 talking about in 11. Not incorporating'them in.his attacks.
24 And if that's what he intended to do, it is to say the 25 least, vague draftsmanship.
1
/ Heritage Reporting Corporation (202) 628-4888 1
25118 1 JUDGE SMITH: You know, now that.we're arguing it 2 I'm wondering why we have to make this distinction. Why is 3 it not in issue as much as is alleged in 11 as it is in 19?
4 I forget why it's important.
5 MR. TRAFICONTE: It's important because we're 6 trying to move for the admission of a document -- ,
7 JUDGE SMITH: 112.
8 MR. TRAFICONTE: --
112, which is a portion of the
- 9 onsite plan that sets forth the protective action decision 10 criteria.
11 And Mr. Turk and Mr. Dignan are taking the 12 interesting position that the onsite plans decision criteria 13 are not in issue before this Board.
14 And quite honestly, I cannot for the life of me 15 see how they can say that in light of the language.
16 Your Honor, let me just make another point here.
17 The basis of 19-A which Mr. Dignan has just cited in part 18 continues on and says: "These PARS," the ones made by the 19 ORO, "were exactly those which were being recommended by the 20 licensee at that time.
21 That's to say that, as described in detail in MAG -
22 Exercise 11 -- in other wordn, for everything that we said 23 in many pages earlier in exercise 11 about what was wrong 24 with the protective action made, those were the same 25 protective actions made by the licensee.
Heritage Reporting Corporation (202) 628-4888
25119 1 And in 19 the contention statement says that the-2 exercise revealed a fundamental flaw in the onsite plans PAR 3 decision criteria. I can't see for the'-- I mean, I might 4 acknowledge that under the press of time this paragraph.
j .5 could have been written, as almost~any paragraph'could be, 6 more clearly.
7 But.the reading of the _ contention statement which
.. 8 challenges the onsite plans. decision criteria and this
-9 basis, which incorporates by. reference all of the particular i 10 complaints about the particular PARS made'at the offsite 11 stage into'the critique of the.onsite plan, the combination i k
12 of that has to result in a conclusion that we are realleging 13 all the defects that we alleged in 11, we are realleging:in ]
14 19.
15 And we're charging the same failings against the l 16 onsite plan that we were charging against the offsite plans.
17 That's what Dr. Goble's testimony says.
18 And I also have to'just add here, parenthetically, 19 I think the Staff acknowledges this when it puts together 20 testimony and puts two people.on the stand who defend the j t
21 PAF* that the onsite staff made against much more than 22 METPAC. METPAC was a very tiny component part of their -
23 testimony.
24 Their testimony runs to all of the other ways in q 25 which we are criticizing the ERO's protective action p
() Heritage Reporting Corporation (202) 628-4888
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25120 1 recommendations.
2 So to me this issue hinges on one preliminary 3 determination: either it's incorporated by reference or it 4 isn't. If it's incorporated by reference, I don't think the 5 language of EX-ll where we go in paragraph after numbered 6 paragraph identifying the defects as we see them in the 7 protective action criteria, I don't think that would permit 8 the notation that it all comes down or is reducible to -
9 METPAC. It clearly is not. The testimony did not get filed 10 that way. Nobody in the proceeding thought, Mr. Dignan 11 aside perhaps, nobody thought that METPAC was the only part 12 of our critique.
13 We were giving a substantive critique, just in the 14 line that Dr. Goble did, we were providing a substantive 15 critique of the decision criteria used during the exercise 16 by both the offsite -- in the offsite plans as well as in 17 the onsite plans.
18 And I would just come back, I know this is taking 19 a lot of time, but to the extent that you need evidence of 20 specificity and basis, I would walk you through each of the 21 numbered paragraphs on pages 108 to 109. I would go through -
22 1 through 5 and I would indicate.
23 JUDGE SMITH: In every one of them you begin, with 24 the exception of METPAC, you begin with a recommendation and 25 not with the specifics of why the methodology of arriving at Heritage Reporting Corporation (202) 628-4888
_ _ _ _ _ _ _ _ _ _ _ ^
251211 1 that recommendation is' flawed; and'that's what we'have'been I
f\ , 2 looking for.
3 MR. TRAFICONTE: Well, I saidlgo back-to numberL1.
4 I think 1'says two things. It,says, first of'all, what they..
5 did. And then it' critiques the methodology, the decision 6 criteria by saying thatlthel refusal'to consider:a beach 7 closing turned out to be a mistake- .
. 8 JUDGE SMITH: Why?'
h 9 MR. TRAFICONTE: For the statements that came --
10 JUDGE SMITH: Because of'the consequences.
11 MR. TRAFICONTE: Well-, sure.. ;Yes.
12 JUDGE' SMITH: If it's not there,: tell me where you 13 go behind the protective action recommendation attacking the 14 methodology for arriving there and not the recommendation-l 15 itself, the wisdom of it and the consequences of it.
16 NR. TRAFICONTE: It is:part of the decision-17 criteria, Your Honor.
18 JUDGE SMITH: Excuss me. Aren't you saying that 19 the SPMC is flawed because the protective action 20 recommendations that it would lead you:to are incorrect?.
. 21 MR. TRAFICONTE: Yes.
22 JUDGE SMITH: But.after all this' time we' spent 23 arguing, except for METPAC, we still have not been informed 24 as to how they arrive at that incorrect decision.
25 MR. TRAFICONTE: Well, paragraph number'l alleges e
Heritage Reporting ' Corporation (202) 628-4888
25122 1 that the way they do it, it's a negative. But what it says 2 is that they do not consider -- they do not consider a beach 3 closing at the alert. That's part of the decision criteria.
4 JUDGE SMITH: No, that's a protective action 5 recommendation. They don't make a protective action I 6 recommendation.
7 You don't ever specify, which we have been 8 debating every since Friday afternoon, in any contention .
9 except METPAC, 19-D, how their methodology arrived at that 10 alleged improper PAR. I'm not going to say that anymore.
11 MR. TRAFICONTE: No, I was going to say, I'm not 12 going to use number 1 as an example anymore since I think we 13 are maybe not connecting.
l 14 Let's take a look at number 3. Number 3 says:
15 "After the general emergency was declared at 1:30 with the 16 release of radiation minutes thereafter ORO recommended that 17 Amesbury and Salisbury be evacuated and that the four 18 remaining Massachusetts communities be sheltered." That's a 19 statement of fact.
20 "This PAR-2 was inappropriate." Now that's 21 essentially what we're alleging. "If all relevant factors ,
22 had been considered and judgment and common sense applied, 23 Newburyport with its sizable population also should have -
24 been given a recommendation. The SPMC, however, locks ORO 25 into making PARS for Newburyport only when the same PAR is Heritage Reporting Corporation (202) 628-4888
25123 1 made for these other towns." That's part of the decision 2 criteria. That's the challenge to the methodology.
4 MR. DIGNAN: Of ORO. In the SPMC.
5 MR. TRAFICONTE: Yes.
6 JUDGE SMITH: But he's saying it flows from 7 onsite.
. 8 MR. DIGNAN: It doesn't, that's the point.
9 MR. TRAFICONTE: We have already indicated --
10 MR. DIGNAN: It's the SPMC that locks them, as he 11 puts it.
12 MR. TRAFICONTE: We're not disputing that. I-have 13 already acknowledged that --
14 MR. TURK: May I offer something.
~
15 MR. TRAFICONTE: Let me finish this one statement l
16 about number 3, okay.
17 MR. TURK: It is a long statement.
18 MR. TRAFICONTE: Let me finish this one statement l 19 about paragraph number 3.
20 The next statement is: "The exercise demonstrates
. 21 a fundamental need for greater flexibility in shaping 22 appropriate PARS for the Massachusetts communities." That's 23 a challenge to the way in which the ERPAs are grouped, the 24 communities are grouped in ERFAs. It's a challenge to the 25 methodology. It identifies a fundamental flaw in that Beritage Reporting Corporation (202) 628-4888
l 25124 1
1 regard, arising from the exercise. Dr. Goble testified to 2 that effect. He said that they should break Salisbury-off 3 from Amesbury, et cetera, et cetera. j 4 For the life of me I cannot see how this doesn't 5 supply a challenge with adequate specificity and basis to 6 the decision criteria used by ORO.
7 Now I grant that to my fellows on the other side 8 of the bar that it does say ORO. But I come back to my ,
9 point which is, everything we alleged in 11 --
10 JUDGE SMITH: How about this point, that is it not 11 the ERO but the plan itself that locks that PAR in and the 12 ORO exercises it without regard to PAR methodology exercised 13 by the onsite personnel.
14 MR. TURK: Your Honor, I would like to offer 15 something either before or after you --
16 JUDGE SMITH: Wait just a second.
17 (The Board confers. )
18 19 20 21 .
22 -
23 -
24 25 Heritage Reporting Corporation t (202) 628-4888
~
1
25125
,. 1 JUDGE-SMITH: Excuse me.- Go ahead. We're done t
't 2 consulting..
3 MR.. TURK: 'So am I 4 JUDGE SMITH: All~right.
5 Mr. Turk.
6 MR. TURK: Your Honor, I.have'& lot of respect for 7 my brother Traficonte. He'often is quite visibly the.best l
- 8 lawyer that. Mass AG has put into this' proceeding.-
L 9 Unfortunately, sometimes he will' argue with.a 10 fervor on an argument that:has no merit.- 1md this is one of 11 those occasions.
12 There is nothing, as the Board has noticed, there 13 is nothing'in MRG Exercise 11 or MAG Exercise 19 that ,
24 l
l , challenges the procedures or the process utilized by the j i -
\
- 15 ERO. There is nothing there.
l 16 The one thing that Mr. Traficonte has latched -- ]
17 JUDGE SMITH: Except METPAC.
18 MR. TURK: Except METPAC, which I'm informed,Eby l
19 the way, is also used by the offsite organizations. 'I 20 wasn't aware of that when the Board was considering l
. 21 jurisdiction, but I would think since offsite: organization-l
)
22 use METPAC, that's clearly within your jurisdiction anyway.' i 23 The one thing that Mr. Traficonte is. latching onto l
24 today is an attempt to argue with an incorporation by !
25 reference that MAG Exercise 11' challenged ERO. And 0
, Heritage Reporting Corporation (202) 628-4888 j
i I
f i
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ __ __ .l
25126 1 therefore because 19 incorporates 11, 19 also challenges the 2 ERO.
3 I can't understand the argument, and I would ask 4 the Board to remember back in March when the Staff asked for 5 clarification as to what it was that MAG Exercise 19 6 actually addressed. And we said to Your Honor, in a 7 telephone conference, that until then we had understood that 8 we were not going to have to put on any testimony, because .
9 we saw MAG Exercise 19 as raising an offsite issue, and that 10 would be covered by FEMA: the adequacy of what the offsito
{
11 organization did and the adequacy of the offsite plan. l l
12 And Mr. Fierce at that time was participating for {
'I 13 the Mass AG, and Mr. Fierce said, I don't know how you can 14 reach that determination, because we already have MAG )
15 Exercise 11 in the proceeding, and MAG Exercise 11 raises 16 offsite issues, not onsite.
l 17 And he argued at that time that MAG 19 was 18 something totally distinct and that's where we had to go in 19 order to -- in terms of 19, that's where we had to go in 20 order to litigate onsite issues.
21 And let me read you from the transcript of that .
22 telephone conference. This March 9th of this year. I had 23 just indicated that I thought we, the staff, did not have to
- 24 address any kind of onsite issues with testimony.
25 And Mr. Fierce states, and this is at page 15830.
l Heritage Reporting Corporation (202) 628-4888
- ll
25127 1 "Your Honor, if you are going to do that," you had indicated 2 you were going to go back' and look at the contention, "take 3 a look at the same time at MAG Exercise 11, which is another 4 contention that was admitted, and directly challenges the 5 way the ORO went about making protective action decisions."
6 Judge Smith: "Okay."
7 Mr. Fierce: "Mr. Turk's reading would be a
, 8 duplication. Would turn MAG Exercise 19 into a duplication 9 of a contention that's already there."
10 The whole point at that time was that MAG Exercise l
11 11 challenged the offsite organization, and MAG Exercise 19 12 raised the issues that required Staff to prepare testimony 13 to counter.
14 So here they are today making a totally different 15 argument in exact opposition to their prior argument.
16 MR. FIERCE: Same argument.
17 MR. TURK: And I'll tell you something, Your 18 Honor. You have been extremely tolerant, I think, beyond 19 the point that they are entitled to. Because I'm listening 20 to arguments that are actus.lly making me angry. To hear the 21 kind of obfuscation going on over there is totally 22 inexplicable to me.
23 MR. TRAFICONTE: Before Mr. Turk completes his 24 presentation and the fact that he's getting angry, could you 25 ask Mr. Turk to explain why his Staff witnesses, from pages Heritage Reporting Corporation (202) 628-4888
_ _ ____ _ _ _ _ _ _ _ _ - _ - _ . I
25128 1 11 of their prefiled testimony on to pages 11 through 23 or 1
2 22 of their prefiled testimony, could we have from Mr. Turk 3 an explanation for why his Staff witnesses defend the 4 general PARS made by the ERO at this exercise?
5 If his position is that he had nc idea that 6 Exercise 19 challenged the decisionmaking made by the ERO, 7 why do his two witnesses in prefiled testimony for 11 pages 8 address precisely that issue? -
9 If he can explain that, then I would grant him the l 10 right to be angry. But absent an explanation of that, I 11 think the anger is feinted at best.
12 MR. TURK: Your Honor, I'll be happy to respond to 13 that, but I noticed Mr. Traficonte has not yet responded to j 14 my charge that Mr. Fierce used the opposite argument that ,
15 he's making today.
16 MR. FIERCE: It's the same argument.
17 MR. TRAFICONTE: Well, you have read two or three 18 sentences from a very lengthy telephone conference.
19 MR. TURK: I read the relevant ones. You find the 20 other ones you would like to introduce.
21 MR. TRAFICONTE: Oh, that's -- .
22 MR. TURK: Your Honor, I'm prepared to answer why l
23 the Staff filed testimony in the way that it did, but I note 24 I still haven't heard Mr. Traficonte's explanation. But 25 I'll tell you why we filed the testimony we did.
Beritage Reporting Corporation (202) 628-4888
. - - _ _ - _ _ _ _ _ n
25129 1 We saw the contention, after your ruling that in 2 fact led us to file testimony, we saw the contention as 3 essentially raising a dependent clause. The dependency was 4 the offsite organization issued PARS simply relying on the 5 onsite organization's PARS. And in that, they were wrong.
6 Well, then we came back and said, well, here is 7 why the PARS themselves, which were issued by the onsite 8 organization and relied on by offsite organizations, were 9 appropriate, and therefore that eliminates the flaw of the 10 dependency.
11 JUDGE SMITH: Okay.
12 MR. TRAFICONTE: This sounds like a very lengthy 13 argument over a motion to admit or not admit a contention.
14 JUDGE SMITH: No.
15 MR. TRAFICONTE: And remember, we're only fighting 16 over whether a document should be admitted.
17 MR. DIGNAN: It's evidence, not a contention.
18 MR. TRAFICONTE: I said it " sounded like."
19 JUDGE SMITH: It's your use of the document that 20 raised the whole argument.
. 21 (The Board confers.)
22 JUDGE McCOLLOM: Could I ask what the source of 23 this document is that makes up Mass AG Exhibit No. 112?
24 It's entitled " Emergency Response Procedure Cover Form".
25 MR. TRAFICONTE: Yes, Your Honor.
Heritage Reporting Corporation (202) 628-4888
I i
25130 1 It is one of the procedures in the Seabrook 2 Station radiological response plan which is the onsite plan. I 3 JUDGE SMITH: It's not otherwise in evidence.
4 MR. TRAFICONTE: No.
5 JUDGE SMITH: Right.
i 6 MR. TRAFICONTE: It is the onsite plan. -
1 i
7 JUDGE McCOLLOM: So it's not in evidence in this i
8 proceeding as of yet in any of the documents that have been * '
9 received?
10 MR. TRAFICONTE: I believe that's correct. I i
11 (The Board confers. )
12 JUDGE SMITH: The objection is sustained. We read l
13 the two contentions together as having only one statement of I f
14 specificity as to the onsite methodology. That is to be I 15 found in 19(d). We adhere to the interpretation of 19(d) 16 that the clause introducing 19(d) which states, "In all the !
17 instances described above" was a clause specifying instances 18 described above, looking back at MAG 11.
19 We see that those allege faults flowing from the 1 20 PAR itself offsite and not to the onsite methodology.
21 This Exhibit 112 impermissible goes into the -
22 onsite methodology, even to the extent where you get into
~
23 the plant parameters which is nowhere alleged in anything we 24 can find or covered by it.
25 So MAG Exhibit 112 is rejected.
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25131 1 (The document referred to,
() 2 having been previously marked 3 for identification as Mass AG l
l 4 Exhibit No. 112 was rejected.)
5 MR. TRAFICONTE: As to 113 and 114, Your Honor, I l 6 would offer both of those documents.
7 The first is a letter from Mr. Nerses requesting
. 8 additional information. The second is an August 27, 1988 9 letter, I believe, supplying the information. I would offer 10 them both for the limited purpose of permitting the record 1
11 to have within it the documents discussed by witnesses.
12 They refer to various portions. And however we want to 13 characterize it, I would offer them for the limited purpoce l _s 14 of aiding the use of the record as to the testimony of these 15 witnesses.
16 MR. DIGNAN: I have no objection. Mr. Traficonte, 17 I believe, described --
18 MR. TRAFICONTE: It's different from the offer I 19 made, yes.
l 20 MR. DIGNAN: No. You described 113 as being 21 August 22. And I believe what it is is 113 is August 9th.
22 MR. TRAFICONTE: Right.
l 23 MR. DIGNAN: That's the response. And July 22 is 24 the date of 114, which was the request. They are in reverse 25 order.
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i 25132 1 MR. TRAFICONTE: They are in reverse order.
2 MR. DIGNAN: And on that basis, I have no 3 objection.
4 JUDGE SMITH: Mr. Turk?
l 5 MR. TURK: I have two questions I need to ask 1 6 before I state I have no objection, Your Honor. J 7 The first, the Board may recall that on Thursday 8 of last week we had two NRC Staff witnesses here. And I . j 9 asked them to recount events from the Perrotti deposition 10 which would indicate whether or not the Staff and Mr.
11 Perrotti still have concerns about the beach closure issues.
12 That is, why one plan has certain provisions and another 13 plan has other provisions with respect to beach populations.
14 And the Board decided that we need not pursue that 15 with these witnesses since we were going to come then to the 16 question of the Perrotti deposition itself.
17 Now I understand that Mr. Traficonte is limiting 18 his offer now to a much more limited extent than he had 19 offered it on Thursday of last week.
20 I would not object to this offer of Exhibits 113 21 and 114, understanding that the only purpose is to aid the .
22 Board in understanding what it is that the witnesses here 23 were referring to. ~
24 But I think we still have an open loop with 25 respect to what happened to the Staff's concerns, or Mr.
Heritage Reporting Corporation (202) 628-4888 I
25133 p_
1 Perrotti's concerns about the beach provisions.
() 2 So I would say I have no objection subject to the 3 admission into evidence of portions of the Perrotti 4 deposition with respect to those issues.
5 MR. TRAFICONTE: Well, I thought the whole 6 purpose -- in fact, just to put --
7 JUDGE SMITH: I thought -- all right.
i
. 8 MR. TRAFICONTE: I thought we could avoid a fight 9 over the Perrotti deposition. We have lost on the 10 admissibility of 112. The onsite plan and that in 11 particular is not at issue.
12 I was thereby limiting the proffer of 113 and 114, 13 and I expected the consequence to be that there would be no
,, 14 need for the offer of the Perrotti deposition.
15 JUDGE SMITH: I just wonder if the record is not l 16 neutral with respect to Mr. Perrotti. There is nothing with 17 respect to Mr. Perrotti, his attitude at one time or his 18 attitude at a later time, that will influence any decision l
l 19 that we're going to make, Mr. Turk.
20 MR. TRAFICONTE: I will state for the record --
, 21 JUDGE SMITH: We have no record basis to take Mr. j 22 Perrotti's attitudes into account, up or down, sideways or l 23 any direction, not that I'm aware of. The exhibits don't 1
24 raise it in any direction and it's just not there. '
25 MR. TURK: Your Honor, if you --
I
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JUDGE SMITH: You know, we really don't care if 2 Perrotti is - you know, Perrotti is not here. We just have 3 no basis to make any findings based upon what Perrotti 4 thought earlier or later.
5 MR. TURK: All right.
6 Your Honor, the two exhibit that Mass AG is 7 offering now, again those are the letters from the Staff to B Public Service of New Hampshire, asking them to clarify why -
9 there are inconsistencies in the different plans.
10 JUDGE SMITH: Yes.
11 MR. TURK: And then Public Service's response 12 which came back with an explanation, j 13 MR. TRAFICONTE: Your Honor, I'll withdraw the 14 proffer of both exhibits. I will withdraw the proffer of 15 both exhibits even though it was limited to the purpose of 16 making easy --
17 MR. DIGNAN: Just leave them marked for 18 identification?
19 MR. TRAFICONTE: Leave them marked for 20 identification and pass into existential limbo if need be.
21 MR. DIGNAN: The sandbag file. .
22 MR. TRAFICONTE: The sandbag file.
23 (Laughter. )
24 25 l
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251352 1 MR. DIGNAN: Withdraw it.
l
( 2 MR. TURK: Do I understand also then, that we 3 won't have to face proposed findings from Mass AG or'the 4 Interveners aboutithe' beach provisions'and.thel fact that 5 certain plans are different from each other or' inconsistent?
6 MR. TRAFICONTE: I don't see how that:follows..
- 7. The fact that we withdraw a letter --
l . 8 JUDGE SMITH: You're done,lyou don't have anything.
9 left. If he withdraws the' exhibits'--
10 MR. TURK: That's fine. I'm still' freeLto argue 11 for Perrotti's deposition on an alternate basis.
12 MR. TRAFICONTE:- 'Yes, which~is next on the agenda.
13 JUDGE SMITH: .So there is nothing before the 14 Board. You just have decided not to offer 113 and 114'.
k 15 MR. TRAFICONTE: Yes, Your Honor.
16 JUDGE SMITH: Okay.
17 MR. TRAFICONTE: The next thing.on the agenda, if 18 anyone would like to offer the Perrotti deposition'this 19 would be the opportunity to do so.
)
20 MR. DIGNAN: Your Honor, before~that takes place,
.- 21 the remaining matters on for this afternoon are'in the hands ,l 22 of my very capable colleagues and therefore Ilwould beg 23 leave to be excused, among other things to-review 17's' i
24 status. And I hope-I could have that. permission. !
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25136 1 of the Board. During the course of our conversation earlier 2 when the Board was questioning what is it that makes 17 3 necessary, I indicated to the Board that, among other 4 things, the population figures that came out of the partial 5 initial decision did.
6 I may have overspoken there because I'm not sure 7 it does since Dr. Luloff and Dr. High who were the only ones 8 who based any testimony on that basis have been now .
i 9 excluded.
10 Therefore, I will ask my colleagues to distribute 11 17 to everybody today as it stands. But I will, assuming I 12 am excused, I will review with that in mind. And also, it's 13 my understanding that the Board has made it the law of this 14 case that with respect to those portions of the testimony 15 from Ms. Sneider that were admitted, but where the Board 16 indicated it would not allow it as expert opinion but rather 17 as observed fact only, that that ruling is the law of the 18 case, I will take another look at 17 and 17-A on that basis.
19 JUDGE SMITH: There were some aspects -- restate 20 that again? We allowed certain aspects of her testimony as j 21 opinion evidence. But opinion evidence based upon no ,
l 22 expertise.
23 MR. DIGNAN: That's right.
- 24 JUDGE SMITH: Just what a well informed layman 25 might opine based upon a rational basis and observation.
Heritage Reporting Corporation (202) 628-4888
25137 1 MR. DIGNAN: Yes. And then there were other 2 portions that you allowed, if I heard you correctly, you 3 scoped them out in particular and, indeed, I think asked the-4 witness. Now I'm working from memory and if I'm wrong, I'm 5 wrong. But you asked the witness.on a couple of occasions, 6 you don't purport to have expertise in this partipular --
7 JUDGE SMITH: Human factors.
. 8 MR. DIGNAN: -- human factors and so forth. And 9 then you said you would allow that portion in but not as 10 expert opinion in this area.
11 And it's those rulings that I have in mind as I 12 review the need for 17 and 17-A.
13 JUDGE SMITH: That's right.
14 MR. DIGNAN: And hopefully, if not eliminated can 15 be cut down.
16 MR. FIERCE: Your Honor, I do want to mention 17 before Mr. Dignan leaves that within a few days I'm going to 18 have in proffer to you and the other parties a piece from 19 Dr. High which I believe will contain aspects of his 20 testimony that were still valid aspects that had not been
, 21 stricken just because two population pieces of data in his 22 calculation were stricken.
23 And I intend to bring that in, in the next two or 24 three days, Your Honor. 1 25 MR. DIGNAN: I can only make these calls on the G Heritage Reporting Corporation (202) 628-4888
- - - - 1
25138 1 basis of what has and hasn't been admitted to date. If he 2 succeedc in convincing the Board at a later date to put 3 something else in that brings back a piece of 17 -- if he 4 prevails in convincing the Board he should be allowed to 5 file that late, I assume I will have to prevail upon the 6 Board to let me file late to respond to it.
7 But I have to make this call en the basis of what 8 is or is not in the record as of today, it seems to me.
- 9 MR. FIERCE: Your Honor, I also would note that 10 I'm here today, as soon as the motions are over, to begin 11 the cross of panel 17.
12 MR. DIGNAN: That's right. Panel 17 will be here.
13 They don't need me.
14 MR. FIERCE: They don't need you.
15 At that point we will know.
16 MR. TRAFICONTE: We're ready when the motions are 17 over. And if you're deciding to pull or not, we don't know 18 -- what should we do.
19 MR. DIGNAN: Well, if you get all the motions over 20 with, then we'll just put them on, I guess. Because I'm not l 21 going to make that decision by flipping coins today. -
22 But given the fact that there are a few motions to 23 be argued and that you and Mr. Turk are involved, I'm really 24 not too concerned about a decision having to be made before !
25 5 o' clock today.
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- 25139 1 MR. TRAFICONTE
- With'particular emphasis on Mr.
k 2 Turk being involved.
3 MR. DIGNAN:. Your Honor, may I be-excused?
, 4 JUDGE SMITH:- Yes. "
L 5 MR. DIGNAN: Thank you, 6 MR.-TURK:- Your Honor, would this be a good time 7 for a brief recoss?-
- 8 JUDGE SMITH: If you wish?
9 MR. TURK: Please.
R 10' JUDGE SMITH: Let's take our mid-afternoon break, 11 15 minutes.
12 (Whereupon, a-15 minute recess was taken.)-
13 JUDGE SMITH: .Back on the record.
l -
14 MR. TURK: Your Honor,. I am. going to offer at this l
6 . .
\ 15 time portions of the deposition of Donald Perrotti. .And let 16 me indicate, first of all, he is a.former NRC Staff employee 17 who was the headquarters emergency planning reviewer for'the 18 NRC Staff.
19 He was physically located at the EOF during the
~1 20 Seabrook exercise of 1988 and part ofLhis responsibilities-l . 21 were the' observation of personnel in the EOF with respect'to 22 the formulation of protective action recommendations.
~
23 Now, during the testimony of Mr. Fox and Dr. Bores )
i 24 we saw several challenges made by Mass AG to the testimony )
i 25 of the two witnesses the Staff presented, i l
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25140 ,
i 1 One of those challenges was that Dr. Bores who was l 2 located at the EOC in Concord, New Hampshire was not in k
3 position to watch the PARS as they were formulated in the .q 4 EOF.
1 5 And similarly, Mr. Fox who was located at the TSC i
6 at the plant site was not in a position to watch the PAR , l 1
7 formulation at the EOF. In fact, that's correct, the person ]
l 8 who was there was Mr. Perrotti. 1
)
9 The Mass AG wanted Mr. *Perrotti's deposition. j i
10 They offered us a choice: either put him on at the hearing; {
l 11 or let them take a deposition. There was no time for him to l
l 12 be deposed before he left and so his deposition was taken -- 1 1 1 13 I'm sorry, before he left the NRC's employ on March 31st, 14 and so the deposition was taken under subpoena by the Mass ,
15 AG in Pittsburgh, Pennsylvania, close to Mr. Perrotti's 16 home. Mr. Perrotti resides in Greenville, Pennsylvania, I
17 approximately 80 miles north of Pittsburgh. l 18 Mr. Perrotti's deposition was not taken at my 19 insistence. It was taken by the Mass AG under subpoena at 20 their insistence. They gave notice of the deposition to all 21 parties; all parties had an opportunity to attend and to - i 22 cross-examine as, in fact, I did on behalf of the NRC Staff.
( 23 And I would offer Mr. Perrotti's deposition with I
l 24 respect to certain portions. First was, the fact that he 25 was at the EFO and was in position to watch the PARS as they Heritage Reporting Corportttion j (202) 628-4888
25141 1 were formulated. And that, in fact, the PARS that were 2 formulated were consistent with the onsite plan.
3 Now that's a tricky offer at this point in' light 4 of Your Honor's prior ruling that the onsite plan is not at 5 issue.
6 JUDGE SMITH: I would call it downright dangerous.
4 7 MR. TRAFICONTE: Was it " tricky?" Was that the
, 8 word, a " tricky" offer?
9 MR. TURK: The other portions of the offer',
10 however, are more broadly based and they are that, in fact, 11 Mr. Perrotti was in position to watch the PARS as they were 12 formulated. In fact, he agrees that they were timely and 13 appropriate. He agress with the NRC Staff's conclusion in 14 the inspection report that the PARS were prompt and 15 conservative.
16 Further, on cross-examination by Mr. Fierce, not 17 only were they prompt and appropriate but they were the best 18 that could have been made at the time.
19 Also, in Mr. Perrotti's deposition he was asked to 20 discuss his concerns about confusion as he saw it, due to
. 21 inconsistencies among the various plans with respect to 22 protection for the beach populations. And Mr. Perrotti
~
23 testified that he was satisfied that his concerns have been l
24 resolved. And he pointed to language in the Applicants' 25 letter, which has now been withdrawn by the Mass AG which 9 Heritage Reporting Corporation (202) 628-4888
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25142 l I served as a basis for him to feel that his concerns have j 2 been resolved.
i 3 Now, granted Mass AG has withdrawn his offer of a
4 Exhibits 112 -- I'm sorry, Exhibits 113 and 114 so that we i I
5 don't need the testimony to rebut those exhibits. f 6 However, the testimony is relevant to the 7 testimony of Dr. Bores and Mr. Fox, which is in the record, 8 notwithstanding the withdrawal of these two letters.
9 And it was those portions of the testimony that I 10 would offer, Your Honor.
11 JUDGE SMITH: Who wishes to be heard?
32 MR. COOK: Your Honor, I would just add on behalf l
13 of the Applicants that this testimony from the Perrotti 14 deposition is relevant because it goes to the precise issue 15 which remains despite the Board's recent ruling in MAG EX-19 l
l 16 which is the alleged lack of consideration given to the 17 ERO's PARS as a whole, as a conclusion. That is 18 incorporated only into Basis A.
19 None of the specific details -- the Applicants 20 concur with the Board -- were incorporated into MAG EX-19.
21 But insofar as this Board on May 22nd, a Monday, discussed -
22 MAG EX-19 in general as going to the uncritical acceptance, 23 the alleged uncritical acceptance of the ERO's PARS, the 24 Perrotti deposition answers that allegation and rebuts it I
25 without raising the details of the onsite PARS and without
{
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i 25143 i
- 1 1 Opening up.
k,,_ ) 2 And I therefore believe that it would not be l w_-
{
3 downright dangerous without opening up.any of those details j i
l 4 which the Board has just concluded are not appropriate for 5 examination in MAG EX-19.
6 The page references in the testimony of Drs. Fox 7 and Bores, I have found two references at 24,664 and at
. 8 24,929 in which the witnesses refer to their discussions 9 with Dr. Perrotti and understanding the overall 10 communication of those PARS.
11 So if Applicants are correct that there can be a 12 distinction made between the overall conclusion and the 13 communication of the PARS and the transmission on the one 7-s, 14 hand, and the details of the PARS as investigated and chosen
/ t
( ,) 15 and selected through specific instances and detailed 16 methodological procedures on the other hand; then we would i
17 concur and do concur with the offer of those sections. I i
18 MR. TRAFICONTE: I'm not sure what those sections 1
19 are. Is Mr. Turk offering the entire deposition?
20 MR. TURK: Well, it's my intention to identify the
. 21 pages. I'm at this point simply identifying the portions of 22 the transcript that I believe are relevant and should be 23 included. And I can give you a page list, if you like.
24 MR. TRAFICONTE: Do you have that available now?
25 MR. TURK: Yes. But I think you will need time to
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25144 1 review it. It consists, at least as of my morning count, of' 2 94 pages.
l l 3 And I think, Your Honor, the best thing for me to 4 do before offering specific pages is simply to get a ruling i 5 on whether the kind of testimony that I have alluded to 6 should be admitted. And if so, then Mr. Traficonte and I 7 can work out a precise page listing.
8 MR. TRAFICONTE: Well, it's approximately a 220 -
9 page deposition, is it not?
10 MR. TURK: 229.
11 MR. TRAFICONTE: So you're looking to roughly 12 half, have admitted half of the deposition?
13 MR. TURK: 41 percent.
14 (Laughter) 15 JUDGE COLE: You had that worked out beforehand, 16 right?
17 MR. TURK: 41.04.
18 (Laughter) 19 MR. TURK: But if Your Honor excludes portions of -
1 20 the type of testimony that I have referred to, then it would I
21 cut down the size of the offer. .
i 22 MR. TRAFICONTE: Let me address both points.
23 I believe I'm going to object to the proffer of l
l 24 the deposition. In the alternative, to the extent that any 1
25 or all of it is admitted, I'm going to reoffer Exhibit 112.
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25145 1 That shouldn't come as any surprise.
()
2 Since, as I understand the proffer, it's to defend 3 the onsite ERO's PAR decision-making --
4 JUDGE COLE: Process.
5 MR. TRAFICONTE: -- process as being in accordance 6 with the plan. To the extent that that's what the proffer 7 is for, and that's what the relevance of the testimony is,
. 8 I'm going to come back and reoffer to have that portion of 9 the plan that the two live witnesses were cross-examined on, 10 I'm going to offer again to have that' procedure admitted.
11 That aside, I'm going to object -- and I'll take 12 the points that the Applicants have made first. I'm 13 completely puzzled by what Mr. Perrotti's review of onsite
-~ 14 personnel matters, what the relevance of that could be for 7
_,I 15 our allegation that the offsite personnel over-relied on the 16 onsite personnel and didn't do an independent decision.
17 Didn't go through an independent decision-making process.
18 I'm just unclear as to what that point would be. j 19 As to Mr. Turk's proffer, obviously, I continue to l 20 believe that the onsite plan is relevant. And I believe
. 21 that the contentions that we filed raised whether or not 22 there is a fundamental flaw in the onsite plan. We just 23 fought for an hour and a half on that. I believe that's 24 relevant.
I 25 If I hear Mr. Turk -- if I understand Mr. Turk, he i
}
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25146 1 is offering Perrotti's deposition because Perrotti is going 2 to testify in some form of words that the onsite personnel 3 followed the onsite plan.
4 And that the PARS issued by the onsite personnel 5 are timely, appropriate, prompt, and conservative, in some 6 variation because they followed the plan.
7 If Mr. Turk thinks that relevant, that issue is 8 relevant as, frankly, I do, too, then I don't see why Mr. -
9 Turk was in opposition to my proffer of our Exhibit 112 10 which is a portion of the onsite plan. In fact, that 11 portion that lays out the protective action criteria.
12 So beyond being a tricky offer I think, in fact, 13 will just simply reraise the same issue almost precisely 14 that we have just gone through.
15 And I would assert again, and I don't want to 16 reargue, I would assert again that the issue is relevant.
17 That the onsite plan was being challenged.- That the 18 decision criteria were being identified as potentially in 19 need of revision.
20 And whatever Mr. Perrotti says could only be 21 relevant to the extent that that issue is before the Board. .
22 If the Board has ruled that the issue is not before the 23 Board, then it follows like day to night that Perrotti's '
24 deposition is not relevant.
25 JUDGE SMITH: Apparently no one is objecting to Heritage Reporting Corporation (202) 628-4888
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5 25147 1 the form of the presentation. .He could be produced as a.
/ '2 li're witness.
3 MR. TRAFICONTE: Well, there are matters,.for-4 ' example, that -- this is why I was asking for the page- l I
5 reference. I'm not sure what weight could be given to his l
6 testimony on certain matters if it wasn't discussed at the 7 deposition.
-- 8 If something wasn't cross-examined or explored j 9 during the deposition, obviously, it's going to be of little 1
10 evidentiary import.
JUDGE SMITH:
~
11 Well, you' re not objecting to the 12 fact that his deposition testimony -- 1 13 MR. TRAFICONTE: That it's his deposition.
14 JUDGE SMITH: -- as compared.to'having him here. I O 15 MR. TRAFICONTE: That's.right.
16 JUDGE SMITH: All right.
17 MR. TRAFICONTE: I'm pointing out that it's f 18 limited, obviously, to what was in'his deposition.
19 JUDGE SMITH: Right. )
20 Mr. Turk?
. 21 MR. TURK: If Mr. Traficonte had not explored-22 through cross-examination of live witnesses before the Board 23 whether the Applicants had followed their procedures, I 24 would not offer that portion of.the Perrotti deposition.
25 Now I'm perfectly willing to withdraw my offer of Beritage Reporting Corporation (202) 628-4888 (L
25148 1 that section.
2 JUDGE SMITH: Wait a second.
3 (The Board confers.)
4 JUDGE SMITH: Go ahead.
5 MR. TURK: I'm perfectly willing to withdraw my 6 offer of the section of his testimony which he says that 7 they followed their procedures and that he had reviewed the 8 procedures beforehand, found the correct procedures at the .
9 site and was satisfied that they followed their procedures.
10 Depending on what use of the live testimony we're 11 going to see in the Mass AG's proposed findings. If he is 12 going to come before you with proposed findings and say, 13 Staff witnesses didn't even know what the procedures were.
14 Well, then the deposition of Mr. Perrotti is going to be 15 relevant.
16 If the Board feels that that kind of proposed 17 finding is relevant to its consideration.
18 The Board may recall that Mr. Fox had indicated he 19 had seen the procedures but wasn't sure if this was it. And 20 Dr. Bores said he would need to see emergency classification 21 level procedures. ,
22 So if that's the kind of proposed finding we see 23 from Mass AG, then I need something additional. - '
24 JUDGE SMITH: Specifically, what contention was 25 Bores and Fox testimony addressed to? 19?
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y i :25149, 1- -MR. ' TURK: Yes.
l- f
't '2' JUDGE SMITH , 19-D.
3 MR. TRAFICONTE: 19.
1 4 'MR.' TURK: 19.
'5 JUDGE' SMITH: 191in its entirety.
6 But their testimony, now that I' recall, provided-7 -- I forget now'whether it's on the. written' direct or on-
. 8 cross-examination, went1into details of1the protective.
-9 action --
10 MR. TURK: Process.
11 JUDGE SMITH: -
process.
'12 MR. TURK: That's correct.
13 JUDGE SMITH: On" direct.
14 MR. TURK: In'the direct they did not describe the-15 process or talk about the' process. They onlyftalked ab'out-l 16 'the appropriateness of.the PARS that were actually issuedi 17 JUDGE SMITH: Actually issued.
18 MR. TURK: As seen from their understanding'of o 19 what the conditions were at the time and whatfan appropriate 20 PAR should be, based on known conditions.
. 21 JUDGE SMITH: What an appropriate PAR should(be, 22 but not the details of it.
23 HR. TURK: Not the details of the process;-just 24 the result.
25 JUDGE SMITH: And their view was, it-was Beritage Reporting Corporation (202) 628-4888:
I i
25150 1 appropriate; and then we got on cross-examination all of the 2 things that we argued about.
3 Do you see any problems reconciling your argument 4 opposing 112? In the first place, was it appropriate to 5 cross-examine Bores and Fox on reasons why they believe the 6 PARS generated onsite were appropriate?
7 MR. TURK: Yes, with respect to -- and this is 8 something Mass AG barely touched on. With respect to what .
9 would maximize dose' savings at the time, that was the thrust 10 of their testimony.
11 JUDGE SMITH: Right.
12 MR. TURK: That given plant conditions, given what 13 was known about meteorology, even considering the predicted 14 wind shifts, the resulting PARS that were issued were the 15 best ones for the population in order to protect them.
16 17 18 19 20 21 ,
22 23 -
l 24 25 Heritage Reporting Corporation (202) 628-4888
2515'.'
1 MR. TURK: (Continued) Nor did they follow proper 2 procedures in arriving at the FARs. That's something that 3 Mass AG introduced through his cross-examination.
4 Now, was it proper for me to -- should I have 5 objected to cross-examination on the procedures?
6 JUDGE SMITH: I don't think you could have. But 7 the question better put is should you have offered the
. 8 testimony to begin with.
9 MR. COOK: Your Honor.
10 MR. TRAFICONTE: Mr. Fox and Dr. Bores.
11 JUDGE SMITH: Fox and Bores testimony.
12 MR. TRAFICONTE: Yes.
13 JUDGE SMITH: In view of the arguments that you 14 have been making and the Board's ruling that have been made, 15 should you 2 ave offered it?
16 Did it go on to the onsite part beyond the barrier 17 that the Board had tried to create before, with the 18 exception of METPAC?
19 MR. TURK: We didn't think so at the time, Your 20 Honor.
. 21 MR. COOK: Your Honor.
l l
22 JUDGE SMITH: Now what do you think?
23 MR. TURK: And I don't know that I do now. I mean 24 the way the testimony was crafted was to look at the 25 assertions made by Mass AG in the contentions, and respond.
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i 25152 1 MR. COOK: By way of clarification with the leave 2 of the Board.
3 If the Board were to rule that that were the case, 4 that the cross-examination went beyond the scope of the 5 contention in the Board's view, then the deposition would be j 6 irrelevant.
7 MR. TRAFICONTE: Would be what? !
8 JUDGE SMITH: Would be irrelevant.
- i 9 MR. COOK: Right.
l 10 JUDGE SMITH: Well, see, my trouble is I, for one, 11 do not always keep clearly focused in mind that exact line 12 between what the onsite protective action process was 13 compared to what's used offsite and the boundary. And it i 14 didn't dawn on me or otherwise I would have asked at the 15 time.
, 16 Given our previous rulings on where we have drawn l, 17 the line, didn't we have an assumption in this phase of the 18 case that the protective action recommendations generated t j
19 onsite were correctly arrived at and were appropriate, at 20 least with respect to plant conditions. ;
i 21 MR. COOK: Yes, Your Honor. And that's why, on ' I 22 behalf of the Applicants, I inquired only as to whether the I' 23 Board would conclude that there could be a legitimate 24 distinction drawn between the quality of the transmission, 25 which the Board said was an issue --
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'25153
.1 JUDGE SMITH: Yes, right. ,
t 2 MR. COOK: -- and the substance and.the adequacy 3 which the Board said, as you have just repeated, was not at l 4 issue because there was that presumption.
5 JUDGE SMITH: Right. So why did'he put on'
.1 6 testimony offering opinion evidence in addition to the 7 presumption that the onsite decisionmaking process was good 8 and conservative?
9 MR. TURK: The onsite?
10 JUDGE SMITH: Yes.
11 MR. TRAFICONTE: Because he believe the 12 contention --
13 MR. TURK: I don't see a presumption, Your Honor.
14 MR. COOK: He may have done more than necessary.
15 (G) I don't know.
16 JUDGE SMITH: Well, exactly. That's what.I'm 17 asking.
18 I mean, if you did more than is necessary,.
19 everything goes with you on down that trail'.
20 MR. TURK: Well, Your Honor.
21 JUDGE SMITH: I wish I had these concepts in mind' 22 again as I hear their testimony unfold. But now that you
. 23 brought ic to our attention, they had --
24 MR. TURK: Your Honor, may I note one thing?
25 JUDGE SMITH: Wait a minute.
Heritage Reporting Corporation (202)'628-4888
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25154 1 MR. TURK: Sorry.
2 JUDGE SMITH: Up until it came to our attention 3 that we had admitted 19(d) and we had the big debate on what 4 we thought and how we arrived at what seemed to be an 5 inconsistency, do you agree that the line that we had drawn 6 was you don't get into the onsite protective action 7 recommendation process and that you begin with a presumption 8 that those are adequate and you go on to their .
9 implementation and communication offsite?
10 Isn't that correct?
11 I mean, I can't reconcile as I sit here now your 12 arguments that you made opposing Exhibit 112 with what now 13 has been brought to our attention was the nature of the 14 Fox / Bores testimony.
15 MR. TURK: Quite frankly, Your Honor, I personally 16 am not -- as I sit here today, I'm not sure what the net 17 effect of your prior rulings was.
18 I had indicated in that same --
19 JUDGE SMITH: That's the problem.
20 MR. TURK: Well, it seems to be.
21 In that same telephone conference on March 9th, I .
22 had indicated that I didn't understand that I was going to 23 have to come forward with testimony.
24 JUDGE SMITH: Right.
25 MR. TURK: And I stated at 15829 that our initial Heritage Reporting Corporation (202) 628-4888 i
i
25155 1 reading of the contention was it was a challenge to the 2 protective action recommendations made for protection of 3 persons offsite during the exercise.
4 Mr. Fierce came back with the assertion, "I don't 5 know how you could have read the contention that way. It's 6 clearly challenging onsite."
7 You came back, Your Honor, on March 13th putting 8 on the record your ruling as to what was to be within the 9 scope of the contention.
10 If I could have just one second.
11 JUDGE SMITH: Yes.
12 MR. TURK: It starts at page 15874.
13 (Pause to review document.)
14 MR. TURK: That's where your discussion begins.
9 15 At page 15875, you state, "Some matters are purely onsite as 16 are emergency action levels, and some matters are purely ,
17 offsite as most everything in the proceeding is, but 18 protective action recommendations are right at the pinnt, at 19 the authority's boundary between onsite and offsite, and i
20 are really on the offsite side, and that is somewhat of an !
. 21 arbitrary positioning. And for that reason we believe that 22 the contention is an appropriate one."
23 You reference SPMC Contention 56.
24 JUDGE SMITH: Yes. For example, we're saying that 25 we are not going to second guess the plant staff for saying, O Heritage Reporting Corporation (202) 628-4888 1
_. _ _ _ _ _ _ _ _ _ _ _ _ _ A
25156 c l
1 well, we're at the notification of an unusual event, or the 2 alert. We're going to assume that that was exactly right.
3 MR. TURK: The assessment of plant conditions.
4 JUDGE SMITH: The assessment of plant conditions.
5 MR. TURK: Correct.
6 JUDGE SMITH: We're going to assume that that was
~
7 correct.
8 MR. TURK: Yes. That I certainly agree with.
9 That's clear to us and that was not addressed in our 10 testimony, whether or not they correctly assessed plant 1 11 conditions and reached the proper determination of whether '
I 12 to declare an alert or site area emergency. That's not )
i 13 addressed in our testimony. )
14 JUDGE SMITH: And then we went to the point where 15 the PARS cross the distinction. The PARS were the bridge 16 between the offsite and the onsite. The PAR recommendations ]
1 1 ~7 by the onsite people could have elements of both. Since one )
18 of the two Boards had to have jurisdiction over them and 19 there was no jurisdictional void and they were at the plant ;
20 interface, we were going to receive them into this case. l 21 MR. TURK: Yes.
22 MR. TRAFICONTE:
I agree with that. And as long 23 as we are clear that we are continuing to talk about the .
24 onsite personnel to the extent that the ERO consider offsite 25 aspects in formulating the PARS. That was where we were Heritage Reporting Corporation (202) 628-4888
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25157 1 permitted to file a contention.
2 JUDGE SMITH: That the ERO --
3 MR. TRAFICONTE: Still talking about the onsite 4 personnel, we were not going to be able to challenge their 5 assessment of in plant conditions. That was seen by the 6 Board to be --
7 JUDGE SMITH: No questior, about that.
8 MR. TRAFICONTE: That was seen to be onsite.
9 But to the extent to which the onsite personnel, 10 the ERO were making protective action recommendations based 11 on offsite conditions, for example --
12 JUDGE SMITH: No , except that we also regard '
13 meteorology :ss onsite, purely as that, as onsite.
14 MR. TRAFICONTE: But you permitted us to challenge O 15 it.
i
{
l 16 JUDGE SMITH: In the METPAC, yes.
17 MR. TRAFICONTE: Well, we believe, obviously, in 18 METPAC &nd in other places. But not to get into that l
19 argument again, we clearly challenged it in our challenge to 20 METPAC, yes. ,
. 21 Meteorology is an offsite aspect consideration.
22 JUDGE SMITH: Oh, I know.
~
23 MR. TRAFICONTE: Yes.
24 JUDGE SMITH: The wind blow offsite, right?
25 MR. TRAFICONTE: Right. But in terms of --
l 9 Heritage Reporting Corporation (202) 628-4888
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25158 a 1 JUDGE SMITH: But it also goes into the mix --
2 MR. TRAFICONTE: Yes.
3 JUDGE SMITH: -- of plant status and it is a part 4 of the mix that takes you up to but not including the PARS.
5 However, there are other aspects of it, too.-
6 There is aspects of meteorology which even the offsite 7 organization should look at.
8 MR. TRAFICONTE: Yes, f
9 JUDGE SMITH: Right, i i
10 So meteorology is one of those inputs that would I i
11 be somewhat related to plant status and also -- )
12 MR. TRAFICONTE: Yes.
l
' )
1 13 JUDGE SMITH: -- have elements of offsite is the 14 way that I - you know, fortunately, nuclear reactors are 15 not designed around Board hearings. They are designed 16 around a better flow of continuum of logic, i 17 MR. TRAFICONTE: I think what the Board has 18 indicated so far is right, that there were component parts 19 of the PAR decisionmaking made onsite that we could raise 20 and the Board had jurisdiction over, and that we did raise, 21 if not generally, then in 19(d).
22 JUDGE SMITH: All right.
23 MR. TRAFICONTE: And just to repeat, I had cross- .
24 examined that Panel. First of all, the Panel put in 25 testimony that defended, on those pages that I had Heritage Reporting Corporation (202) 628-4888
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25159 1- referenced before the break, pages 11 through 22
\ 2 approximately, that the Staff Panel defended the protective-3 action recommendations made by the ERO, the onsite 4 personnel. And my. cross-examination followed them.
5 I sought to critique'through cross their judgment 6 that the PARS were adequate. So I think to that' extent Mr.
7 Turk and I are in agreement.
. 8 Now, he obviously now believes, or believed all 9 throughout that the onsite plan is not'at issue and has-10 never been at issue.
11 JUDGE SMITH: See, where I got sort of taken off 12 the track, and I wasn't even aware of it at the time', was 13 you start talking about site area emergencies, and plant 14 status of the six parameters.
15 MR. TRAFICONTE: Yes. Unmitigated conditions, 16 yes.
17 JUDGE SMITH: Right.
18 We wandered onsite; clearly on that side of the 19 barrier which everyone seemed to recognize before. We 20 wandered onsite. But it seemed to be in such a logical way
. 21 and objections weren't made at the time, as I recall, 22 calling upon us to enforce that boundary. We seemed to ,
~ i 23 arrive there in a very logical way.
24 Now what do we do about it?
25 Is that a fair assessment of where we are? Now
'l Heritage Reporting Corporation ;
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i 25160 l 1 what do we do about it? Since we're there, what do we do l 2 about it? '
3 I don't know. l f
4 MR. COOK: Your Honor, perhaps the key inquiry is i
5 whether Mr. Fox and Dr. Bores expanded the scope of tnose 6 contentions. And they can't do that. If the testimony went f
7 beyond the bounds, then the testimony, the cross and the
- 8 offer of part of Mr. Ferrotti's deposition to supplement i 9 that testimony, all of that would be irrelevant.
10 MR. TRAFICONTE: That's just not right, Your 11 Honor. I think cross-examination can extend the boundaries 12 of the contention.
13 JUDGE SMITH: See, every time I start to think 14 about these divisions in crude terms, I'm reminded by the i 15 parties here that a little bit finer tuning is necessary, 16 By way of observation, however, it seems that no 17 matter how fine you tune it, the litigation all centers 18 right on it. It's as if you are looking for the line to 19 litigate. You won't litigate any place except right on the 20 line, and the line is just artificially drawn to begin with, i
21 MR. TRAFICONTE: But just as a general principle, 2 22 I understand the thrust of this is the scope of contentions.
23 JUDGE SMITH: All right. ,
24 MR. TRAFICONTE: But I believe that -- remember I 25 how the whole thing starts. A contention is filed for Heritage Reporting Corporation I
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,, 1 litigation,-and discovery and other.prehearing processes can 2 narrow or enlarge or shift the focus on a ecntention.
3 MR. TURK: That's not correct.
4 JUDGE SMITH:. No, it can't.
5- See, that is correct. You might find that l 9 6 situation, and you might even move to amend the pleadings to 7 conform with the evidence. But we are'not allowed to-do
. 8 that.
9 We are only allowed to identify contentions and.
10 meet, as you know, many, many standards, NRC standards and 11 litigate those and nothing but those. And we cannot enlarge 12 them as we run along. You know, we are supposed to describe 13 them at the beginning, or maybeLinterpret them. I don't-14 know.
15 But just flipping through the Fox / Bores testimony, 16 they-don't in any way seek to-justify the emergency-17 classification levels, or say those are right or' wrong'or 18 anything else. They seem to start at the point that-once !
J 19 arrived at, the protective action recommendations provided '
l 20 the better dose savings. i
. 21 MR. TURK: That's correct, Your Honor.
)
22 JUDGE SMITH: What'are the correct ones.
1
~
23 MR. TURK: They look at what the known conditionsf i
24 were in-plant and offsite. And they say these. PARS, based l 25 on those conditions, were appropriate.
i O Heritage Reporting Corporation (202) 628-4888
25162 1 JUDGE SMITH: I'm not saying that. They looked at 2 the --
3 MR. TURK: Well, for instance, they take note of 4 what was happening at the plant which would lead to a need 5 for a protective action recommendation: the fact that you 6 have a bottle exploding, that you have parts of the plant ,
7 down and out of service.
8 JUDGE SMITH: They did not say that the bottle 9 exploding correctly arrived at the --
10 MR. TURK: At the SAE, at the site area emergency.
11 JUDGE SMITH: -- site area emergency.
12 MR. TURK: That's right. No, they just --
13 JUDGE SMITH: They did not say that.
14 MR. TURK: They say this is what happened.
15 JUDGE SMITH: This is what they did.
16 MR. TURK: They give a factual account.
17 JUDGE SMITH: Yes.
18 MR. TURK: Without saying it was appropriate then 19 to issue the SAE. Just here's a factual account of what 20 happened. Once the SAE was issued, then they issued a PAR.
21 JUDGE SMITH: Okay. -
j 22 But the cross-examination then brought into 23 question whether the SAE was correctly arrived at. No, it !
! 24 didn't. When you look at it in retrospect, it didn't. The 25 cross-examination brought into question whether once the SAE l Heritage Reporting Corporation I (202) 628-4888 i
25163-1 was arrived at was declared, were other matters properly I
( j 2 accounted for which I think those were clearly onsite 3 anyway.
4 I mean, really, in effect, you were quarreling 5 -with the fine-tuning of the SAE I would say.
6 MR. TRAFICONTE: We weren't challenging the'SAE.
7 The witnesses were defending the PARS as prompt and:
. 8 conservative, timely and appropriate.
9 My cross, first of all, established that they 10 believed that they were timely-and appropriate because they 11 were in accordance with the onsite plan and procedures. '
12 MR. TURK: That's not correct.
13 MR. TRAFICONTE: I put the question to the 14 witnesses and they responded that that was part of the 15 reason why they believed that they were timely and 16 appropriate.
17 I then proceeded to put before the witnesses what 18 the procedures and the relevant portions of the plan say. I 19 then led the witnesses to the review of those procedures and 20 to test whether or not the actual PARS issued were in
, 21 accordance with the plan, which is the relevant portion is 22 Exhibit 112.
23 It turned out that -- well, it turned out both 24 things. I mean, in the first instance, it turned out that 25 upon declaration of the site area emergency there had to be Heritage Reporting Corporation ,
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25164 1 one of six onsite conditions or plant conditions to trigger 2 the beach closing. And it turned out that in this instance 3 none of those conditions were present.
4 And then we followed it up with another paragraph.
5 6
7 -
8 9
10 11 12 13 14 15 16 l 17 18 l
19 20 21 22 23 24 25 l
l Heritage Reporting Corporation (202) 628-4888
25165-1 JUDGE SMITH: That's what I have trouble getting 2 into: going to any.of the conditions in the plant. Plant
, 3 status conditions.
4 No, wait a minute. No, I'm backing up here.
5 Because it's not the proper reading of the plant. status 6 conditions. It's the proper use of.them in the.--
7 MR.'TRAFICONTE: In making a. protective action 8 recommendation in accordance with the plans and procedures, 9 that's precisely right. I didn't challenge whether they 10 accurately declared site area emergency. I was probing 11 whether or'not upon declaration of a site area emergency the 12 plan adequately provides for the right protective action 13 recommendation.
f-ss 14 We need a stipulation as to what I would propose m, 15 findings on. It's quite obvious and I hope quite clear that 16 we think we uncovered a fundamental flaw in the onsite plan 17 as to the timing and the basis in that plan for, in this 18 instance, a precautionary beach closing.
19 We were entirely throughout. focused on the 20 protective action decision-making criteria in.the onsite
. 21 plan. And that was the basis for cross-examining.that l
l 22 panel.
~
23 JUDGE SMITH: Well, when the Board originally 24 addressed the line between the onsite and the offsite back 25
~
in accepting the contentions on the SPMC we thought we had a Heritage Reporting Corporation
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25166 1 logical line. I'm the only surviving member of that Board.
2 But we thought we had a logical line beginning with, but not 3 challenging the PARS emanating from onsite.
4 The line drifted when it came to the exercise 5 contentions. Our ruling on 19 and 19-D is now history in 6 this case, our rationale for it.
7 In any event, that ruling there is indication that 8 the line wasn't always clear in the Board's mind itself when -
9 it was ruling on contentions. I mean, we stomped all over 10 the line, both sides of it.
11 The Staff, reasonably I believe, saw us as not 12 heeding their advice as to where to draw the line. Saw 13 themselves as not the prevailing party on that. And 14 reasonably, also, presented testimony which doesn't defend 15 the reading of plant status indicators or anything, but does l 16 defend the quality of the PARS. The quality of the onsite 17 generated PARS.
l 18 That's farther onsite than the Board evir 19 initially set out to allow, but that's where we are. And 20 it's supported by the language of the contentions that the 1
21 Board has admitted. .
22 And certainly, we can no longer offer as a reason 23 that we didn't go onsite because we didn't have jurisdiction '
l 24 because the Appeal Board has put that to rest.
25 So we've done whatever the contentions say. I Heritage Reporting Corporation (202) 628-4888
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25167 1 mean whatever the contentions say, that's what they say.
2 And our interpretation of the onsite/offsite, as far as 3 jurisdiction is concerned, is no longer there.
4 So the Staff's testimony does address the quality 5 of the PARS generated onsite. And the cross-examination 6 appropriately challenged their conclusions based upon the 7 information that we heard including 112. Rejected Exhibit
. 8 112.
9 Now, the Staff wishes to go farther down that line 10 with the deposition testimony of Mr. Perrotti. No one is 11 raising an objection as to the form of the evidence, only 12 the relevance of it.
gg 13 MR. TURK: Well, Your Honor, in light of the fact 14 that 112 has been denied admission I would --
15 JUDGE SMITH: I think we're wrong.
16 MR. TURK: I would limit my offer of Perrotti's 17 deposition to exclude the corresponding portion where he 18 talks about procedures.
19 JUDGE SMITH: In retrospect the way you have 20 argued Perrotti and everything, I think we're wrong on
, 21 rejecting 112. We're drawing the line finer.
22 And I'm sure as soon as we do that, the argument will center on where that line is and away we go.
23 24 MR. TURK: Your Honor, let me see if I can help 25 for a moment. In our direct testimony --
Heritage Reporting Corporation (202) 628-4888
25168 1 JUDGE SMITH: Again, I want to remind the parties 2 that the Board has not had a continually consistent j
3 treatment of the onsite/offsite dividing line. And for this 4 I'll take full responsibility, but we have not had it.
5 MR. TURK: Your Honor, if I can help -- I hope I 6 this is helpful. We never saw in the contention a challenge 7 to the onsite procedures for the onsite plan.
J 8 All that we saw after Your Honor ruled, in effect, -
)
i 9 directing us to respond to the contention with testimony, l I
10 all we saw was the quality of the resulting PAR, whether l 11 that PAR was appropriate at the time, i
12 JUDGE SMITH: Right. '
13 MR. TURK: Not how was it arrived at in terms --
j 14 JUDGE SMITH: Exactly.
]
15 MR. TURK: -- of following procedures or following 1
16 the plan.
]
17 JUDGE SMITH: Right. l 18 MR. TURK: So our testimony didn't touch on the 1 l
19 procedures, j
20 JUDGE SMITH: However, you can't say, " great PARS" !
1 21 and foreclose testing of those PARS. - l 22 See, we may be able to, neatly sitting back in our 23 office, say this is where this contention falls. But when I
24 it comes to the hearing room where the evidence is, I don't 25 know how we could accept testimony that says, those are Heritage Reporting Corporation (202) 628-4888
25169 1 great little PARS there but don't challenge them.
2 MR. TURK: No, that's not what I'm asking you to 3 do, Your Honor.
4 Let me give a hypothesis: if this was a proceeding 5 -- I'm trying to think of something that bears a good 6 correlation. If this was a proceeding held to determine 7 whether an automobile was adequate under federal regulations 8 and we put on witnesses that said, yes, it is. And by the 9 way, one of the issues raised in the litigation was, do the 10 windshield wipers work properly? And we said, yes, they do.
11 That wouldn't mean that -- and we also concluded 12 that the car was adequate under federal regulations -- that 13 wouldn't mean that every other aspect of the car became an 14 issue in the proceeding simply because we included our 15 overall conclusion that the car was adequate.
16 It's the portion -- it's the contention that we 17 responded to. The contention said, the PARS that the ERO 18 issued were wrong. We came back and said, no, they were 19 good PARS given what was known at the time.
l 20 Now, in cross-examination they tried to say, well,
. 21 but did they follow their procedures? Well, that's not what 22 our testimony had addressed. And that wasn't part of the 23 contention. And it wasn't part of the contention whether 24 the procedures were good. That's an additional matter, 25 which we're satisfied with, but which is irrelevant to the Heritage Reporting Corporation (202) 628-4888
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25170 1 litigation.
2 JUDGE SMITH: Say the PARS are conservative.
3 MR. TURK: That's a Staff inspection report.
4 JUDGE SMITH: Yes. Well, why are they ;
5 conservative? Well, don't ask me that.
6 MR. TURK: No , the testimony explained that. The ~
7 testimony said, because our Staff -- the emergency response l 8 strategy is evacuate-based on plant conditions out to three -
9 or three miles; that would be appropriate. They went j l
10 further, they evacuated out to five. That was appropriate 1 11 and conservative. It was more corsservative in the sense I
12 that more people were evacuated.
13 JUDGE SMITH: Sooner or later when you say 4
14 something is good, adequate, conservative, whatever it is,
{
15 you have to explain why.
16 MR. TURK: Fine. And that's what our testimony 17 did. Because the witnesses looked at what was known about 1
18 meteorology, about plant conditions at the time, and they 19 said, given what was known that's right. Not, did they 20 follow the procedures.
21 JUDGE SMITH: Plant conditions and meteorology, +
22 right. That's exactly right.
23 MR. TURK: Okay.
l 24 Not, did they follow some procedure in the plan, 25 because these witnesses didn't even know what the procedures Heritage Reporting Corporation ,
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25171 1 were. They had seen them at'sometime but they weren't 2 basing their testimony on that.
3 Now, Mr. Traficonte elicited in response to one 4 questicn that, sure, they followed their plan, too. But 5 that wasn't the basis for their testimony. Their testimony 6 addressed the quality of the PARS that were issued. Not 7 plant procedures and following plant procedures.
. 8 So I'm going to withdraw the Perrotti -- my offer 9 of Perrotti as irrelevant, limited to that issue, the 10 following of plant procedures.
11 MR. TRAFICONTE: Your Honor, before the Board 12 consults could I just make one very quick point about Mr.
13 Turk's most recent argument?
14 To get an exercise contention admitted you have to 1S allege a fundamental flaw in the plan. That's what you need 16 to say to get exercise 19 admitted.
17 We had to have been challenging the plan --
18 JUDGE SMITH: You mean exercise 197 19 MR. TRAFICONTE: Exercise 19 to have been admitted 20 had to be a challenge to a plan. And the first statement in l . 21 the contention, of course, is a challenge to the PAR 22 decision-making in the Seabrook Station plant.
23 JUDGE SMITH: Onsite plan.
24 MR. TRAFICONTE: Right.
25 So for Mr. Turk to say that the contention Heritage Reporting Corporation (202) 628-4888
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25172 1 challenges the quality or appropriateness or conservatism of 2 the PAR, but doesn't challenge the plan procedures -- ,
3 JUDGE SMITH: To get the contention admitted --
4 MR. TRAFICONTE: We had to have challenged the j I
5 plan.
6 JUDGE SMITH: To get the contention admitted you 7 had to have a Board that didn't keep the line sharp and 1
8 allowed a challenge to the onsite plan against the rules -
l i l 9 which were in effect or we thought were in effect at the ,
l 10 time. And now after the fact the Appeal Board said we had l 11 to do it.
i 12 I mean, I don't know where we are. But in any j 13 event, I know now, because of the Appeal Board, we're 14 squarely onsite. If MAG 19 says we're onsite, we are 1
15 onsite, now for then. Because the Appeal Board says so.
16 MR. TRAFICONTE: I agree with that. I've heard 17 the jurisdictional point.
18 JUDGE SMITH: So we have to look'at the contention l 19 for what it says.
O MR. TRAFICONTE: Yes.
l 21 And my only comment is: remember the context for l .
22 filing the contention, it had to have alleged --
23 * '
JUDGE SMITH: But we have never ever read, except 24 by mistake, any contention raising the quality of the onsite 25 plan. We never did it. And the Appeal Beard says, whether Heritage Reporting Corporation (202) 628-4888
1 25173 1 you did'it or not it's in and we're stuck with it. 'And we 2 have to work it out.
3 MR. TRAFICONTE: We're prepared to take whatever 4 amount of responsibility that we deserve.for'the misreading.
5 All I would indicate at the time it.was' misread --
6 JUDGE SMITH: I'll tell you, one sets'a 7 responsibility, and you're inviting it,'is what happens here
. 8 when you make arguments before'the Appeal. Board which were 9 not made before the Licensing Board. -Like Mr.' Fierce's, the 10 one I just read on jurisdiction on the returning commuters' .
11 Maybe we could have addressed the issue in light 12 of the clarification by the Chief Judge. Maybe there would 13 be some more cogency to what's happening. But that is not 14 the case.
15 MR. TRAFICONTE: Just for the record,' Your~ Honor, 16 on the day we argued the expungment in which we argued at 17 great length, I did not have available to me'in the hearing j j
18 room -- ;j i
19 JUDGE SMITH: Right. j l
20 We could have addressed that. l
. 21 MR. TRAFICONTE: We certainly might have. If I 22 had available to me I would have made it available to the 23 Board and the parties.
't 24 But I certainly argued and argued vociferously 25 that the Board had jurisdiction at the time.
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l 25174 j 1 JUDGE SMITH: Well, it's the Appeal Boa-d, if they 2 want to entertain arguments that weren't made before the 3 Licensing Board, that's their responsibility and 4 prerogative. We have no choice but to follow it and that's l 5 where we are.
6 So I guess where we are is, at least the quality I
7 of the onsite PARS are in issue. And you appropriately, ,
l 8 even without the Appeal Board determination, you -
j 9 appropriately addressed them based upon your reading of our l 1
10 contention.
11 I'm a little bit concerned about this issue being 12 resolved too readily on argument here and argument there.
13 I'm wondering if we ought to just take a recess on it and 14 reconsider, because all the factors -- the mixture, frankly, 15 is beyond me. I don't know what the Appeal board ruling 16 makes us do. Whether we revisit now what we should have 17 done then or what, I don't know. I just think we have a 18 procedural problem here. !
19 MS. SELLECK: Your Honor, for the record I
20 Applicants' position is that Exhibit 112 was correctly j 21 excluded. And if the Board wants to revisit it, I believe .
4 22 more argument would be in-order. '
23 The difficulty is, Your Honor, that Applicants did 24 not put their own panel on this issue because we believed )
25 that the contention was met already.
Heritage Reporting Corporation (202) 628-4888
25175 1 The Staff presented testimony which may have gone 2 beyond the bounds of the contention.
3 JUDGE SMITH: I'll tell you, let's go back from 4 where the difficulty first began. And that is where we had 5 the SPMC contentions on the protective action 6 recommendations.
7 We received from the Applicant and the Staff one 8 after another after another after another on every basis 9 alleged onsite, onsite, onsite, onsite without a wisp of 10 analysis. Without a wisp of analysis. If it talks about 11 PARS onsite, then that's the end of it.
12 So not knowing as much about the plans as the 13 litigants I said, all right, that's not good enough. We'll 14 have to sit back and we'll have to decide fur ourselves, 15 pick it out, in and out. What's in and what's out. Going 16 through NUREG-0654 trying to capture the theory of it, the 17 philosophy of it. What the plan might say about it. And 18 this is how we came out.
19 I think it was patently improbable that all PARS 20 fell inside and no aspect of it fell outside. You presented i . 21 jointly to us an intuitively improbable situation. And now 22 this is part of it.
23 We came to the exercise contentions, and again, 24 without even giving us the courtesy of referring to our 25 ruling on the SPMC tha same litany comes again: onsite, Heritage Reporting Corporation (202) 628-4888
i i
1 25176 i
1 onsite, onsite, and onsite. Leaving us no guidance and here j 2 we are today. 9l 1 I
i 3 Nevertheless, the responsibility for this mess j 4 that we're in on 19 rests with the Board, because it was a 5 flat-out error. It was never argued correctly. And it was 6 interpreted incorrectly. But we have it. ,
7 MS. SELLECK: Well, Your Honor, I believe a good 8 deal of reasoned argument was presented to the Board this * '
9 morning and on Friday, and on that basis the Board made a l
.q l
10 correct ruling on Exhibit 112.
11 JUDGE SMITH: Well, it may be correct, but it's 12 correct for what reasons; I don't know.
13 MR. TURK: Your Honor, I want to take a stab at a j l
14 jurisdictional argument, if I can. And I have to admit, in I 15 light of the Appeal Board's decision I'm not sure what seems O1 16 to me to be common sense has a place in this proceeding.
17 It has always been my view that when an onsite 18 Board was created, and that is the Wolfe Board, it was 19 created to listen to arguments as to whether or not there 20 was a safety problem in the plant and whether ensite 21 emergency plans were adequate. Onsite emergency plans.
- 22 JUDGE SMITH: That's right.
23 MR. TURK: This Board had for consideration 24 whether the offsite emergency plans.
25 JUDGE SMITH: That's right.
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2517i 1 MR . ' . TURK : That's the.SPMC and the.NHRERP, whether s 2 those are adequat'e.
3 JUDGE SMITH: That's right.:
-4 MR. TURK: Now, when the SSERO referred to-by-Mr.
5- Fierce is the onsite plan, that was'before the'Wolfe. Board.
6 JUDGE SMITH: That's right.
7 MR. TURK: .Not this. Board. That's always been.
- 8 clear to me.
-9 When Your Honor admitted MAG EX-19 I never saw 10 that we had to litigate whether the ERO plan was adequate to 11 the onsite plan. And therefore, I wasn't: preparing 12 testimony.
13 Nonetheless, I was: faced with discovery by the
,- 14 Mass AG seeking to know what our position was as to the-(
\ 15 onsite plan.
16 17 18 19 20
. 21 22 23 24 25
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I 1 MR. TURK: '(Continued) And I said, "Well, Your j 2 Honor" -- in this March telephone conference - "I don't i
3 read the contention that way, but I see there are some words l 4 in the contention that could be interpreted in a contrary j 5 fashion. To-say that, yes, we're supposed to be litigating I 6 an onsite plan issue." And I asked for clarification.
- i 7- Mr. Dignan, in the same telephone conference, !
l 8 said, "Well, i f that's the issue, it's beyond your .
9 jurisdiction."
10 And I said, "Well, I'll respond to discovery i 11 notwithstanding the fact that it may be beyond your I
12 jurisdiction."
13 In the subsequent telephone conference on March 1
l 14 13th, Your Honor indicated that the contention is properly j 15 admitted without -- I have to say without clarifying to what 16 extent we have to address the onsite organization. I think 17 that's the confusion.
18 And I don't know what the Appeal Board order of 19 last week does. And perhaps the best thing to do is refer a 20 . question up to the Appeal Board seeking clarification so 21 that we don't go through the next month of litigation -- and .
22 I don't know how much more litigation Mass AG has planned.
j 23 But so this proceeding does not turn into litigation of '
24 something which was before the Wolfe Board; was disposed of 1
25 by the Wolfe Board, was sent up to the Commission and was Heritage Reporting Corporation (202) 628-4888 -
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25179 1 res judicata.
2 MS. SELLECK: Your Honor, my understanding of the 3 Board's ruling this morning was that it was based on the 4 language of the contentions and not on the jurisdictional 5 points being argued now.
6 JUDGE SMITH: Well, I know, but now, see, we may 7 have correctly excluded it, but now it is being offered as a 8 rebuttal to the overall conclusion of quality. I mean, as I 9 understand it now, the overall conclusion of quality by Fox 10 and Bores.
11 ,
MS. SELLECK: This is the Perrotti deposition and 12 not Exhibit 1127 13 JUDGE SMITH: No, 112.
14 Along the arguments that Mr. Traficonte made was, 15 hey, if that's not relevant to any of the language in MAG 16 EX-11 or 19, why is the Staff testifying to such an extent.
17 Right?
18 And so I said, I don't know why the Staff is 19 testifying to such an extent. But we look at the language 20 of MAG 11 and MAG 19. And as our ruling stated, 19 (d) is
. 21 the only specificity of 19, and no more specificity is found 22 in MAG-11. Therefore, that exhibit is out, f
23 Now it's being reargued in a different context.
24 MR. TRAFICONTE: It comes up again because the 25 offer of Perrotti --
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25180 1 JUDGE SMITH: Right. It came up again in the 2 offer of Perrotti. l 3 MR. TRAFICONTE: Right. And I'll just tag 112 --
l 4 JUDGE SMITH: And that is, it may not be relevant 1 5 to the language of the contentions, but it's sure relative 6 to the testimony of Fox and Bores.
I 7 JUDGE McCOLLOM: You were going to say what? - '
8 MR. TRAFICONTE: We've raised it again this 9 afternoon because I see the Perrotti deposition being q 10 offered for a certain purpose. And then immediately, if 11 it's admitted, I would just reproffer 112 again.
1 12 JUDGE SMITH: Well, he didn't do that --
i 13 MS. SELLECK: On that grounds, Your Honor --
i
)
14 JUDGE SMITH: -- but I begin to rethink it along 15 those lines as we became aware as where they drew the line 16 and the appropriateness of it. '
17 MS. SELLECK: On that grounds, Your Honor, then I 18 believe it would be Applicants' position that the Perrotti 19 deposition would go beyond the scope of the contention.
20 JUDGE SMITH: How about Bores and Fox?
21 MS. SELLECK: Well, I would have to go back and 22 look at it specifically, Your Honor. But my understanding 23 is that cross-examination can't by itself expand the scope ,
24 of the contention.
25 JUDGE SMITH: Well, how about the direct '
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25181 1 testimony?
2 MS. SELLECK: If it went beyond the scope, then 3 it's irrelevant.
4 JUDGE SMITH: Well, one of the things that the 5 Board considered was going back and looking at the testimony 6 and trying to excise, but that's very difficult to do and it 7 may not be appropriate anyway.
. 8 MS. SELLECK: Well, that might be the more 9 appropriate course than inserting now an expanded view of 10 the contention which could be a slippery slope.
11 MR. TRAFICONTE: Well, I'm not sure which side of 12 the slope is slipperiest.
13 We would clearly oppose going back and excising 14 direct testimony, excising cross-examination. I just don't 15 see that at all.
16 If the Staff, in defending or representing itself 17 via-aavis a contention, offered Dr. Bores and Mr. Fox and 18 they said certain things, and on cross-examination I led 19 them to, or I challenged those representations in a certain 20 way, that's all part of the appropriate litigation of that i . 21 issue.
22 I think it would be completely inappropriate to go 23 back after the fact and begin deleting direct testimony and 24 cross-examination because it doesn't --
25 JUDGE SMITH: I don't know how to do it.
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25182 1 MR. TURK: Your Honor, the issue --
2 MR. TRAFICONTE: I don't know what the 3 principal --
4 MS. SELLECK: Your Honor, 1 would --
5 MR. TURM: The question that you will have to 6 address is simple. When you write your findings and 7 conclusions on the case, you will determine whether or not 8 the contentions have been supported adequately by Mass AG or .
9 not, the contentions.
10 The only issue for litigation is the contention, 11 regardless of what the testimony is. If there is something 12 beyond the scope of the contention, you need not address it.
13 JUDGE SMITH: That's true. We have no 14 jurisdiction except for that.
15 MS. SELLECK: Your Honor, I would also --
16 JUDGE SMITH: But we have to interpret the reach 17 of the contentions, too.
18 MS. SELLECK: If the Board is reconsidering the 19 scope of the contention, I would request that argument be 20 put off until tomorrow.
21 JUDGE SMITH: All right. .
22 MS. SELLECK: Because Mr. Dignan would be the 23 appropriate person for the Applicants to argue the matter.
- 24 JUDGE SMITH: All right.
25 Also, the Board, I guess, has to get a better Heritage Reporting Corporation (202) 628-4888
25183 1 hold, a better perspective of what we've done, what we 2 haven't done, and what's been done to us.
3 (Laughter) 4 JUDGE SMITH: And all those things.
5 So we will leave the - you really have got to 6 have that Perrotti deposition in?
7 (Pause.)
- 8 MR. TURK: If that's the hold up, Your Honor, I 9 can withdraw my offer.
10 JUDGE SMITH: I don't think it is any more. That 11 just sharpened it.
12 All right, what are we going to do now?
13 MS. SELLECK: We have three motions in limine, 14 Your Honor. I understand that -- is that next?
15 MR. TRAFICONTE: Yes.
16 MS. SELLECK: There are two motions regarding the 17 Mitchell testimony, one motion regarding the SAPL fire 18 fighters, and one on Dr. Harris.
19 MR. TRAFICONTE: Your Honor, for purposes of 20 tomorrow morning, do I understand that we will revisit the
. 21 issue of Exercise 19 first thing tomorrow morning?
22 I'm just thinking about my own attendance 23 tomorrow.
24 JUDGE SMITH: Yes. Right.
l 25 I guess tomorrow. And what she said, just Heritage Reporting Corporation (202) 628-4888
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25184 1 generally, she would like to have it deferred until 2 tomorrow. We could make it first thing if you think we 3 should.
4 MS. SELLECK: Your Honor, could I-request that it 5 be set for 10:00 instead of first thing at 9:00?
6 JUDGE SMITH: All right. Ten o' clock. ,
7 MR. TURK: And, Your Honor, I hope you will consider seriously my suggestion that if there is still 8
9 confusion, it may be appropriate to refer a question up to 10 the Appeal Board.
11 JUDGE SMITH: Well, that's fine, Mr. Turk. But 12 the way the case runs is that we just have not been able to 13 stop the case dead in its tracks, go back to Washington, 14 write up a certificate, send it up, wait for the answer, 15 come back. We would still be back on the New Hampshire 16 aspect if we did it that way.
17 MR. TURK: All right.
18 JUDGE SMITH: Particularly in light of the fact 19 that the Appeal Board was not ambiguous. They just said you 20 have the jurisdiction. You've always had it. I 21 I don't know. I wouldn't even know exactly how to -
22 frame the question to refer. That's part of our problem.
23 That would literally carve a week out of our time.
24 Adjourn, go up there, prepare all that, do all the
)
i 25 research. That would be a week. )
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25185-1 MR. TURK: No, I wouldn't---
( ,j 2 JUDGE SMITH: That's the way things run.
3 MR. TURK: I' don't-know that it will be necessary, 4' Your Honor. .But~what'I had in mind was we continued -- you 5 make whatever finding you feel is appropriate. In the 6 meantime we just send something to Washington and continue-o 7 with the proceeding in,the meantime.
8 I felt that the Appeal Board's decision was 9 ambiguous, or at least it wasn't clear as to the reasons for 10 it saying that you were to take back 19 (d) .
~
11 JUDGE SMITH: They said that when we threw it out 12 because of want of jurisdiction, we didn't take into account 13 Judge Cotter's order.
14 Well, do you want to do.it tomorrow? Tell us what' l 15 to read in that decision. We'll try to be prepared for it.
16 MR. TURK: In the Appeal Board decision?
17 JUDGE SMITH: Yes.
18 MR. TURK: Your Honor, I think the' flaw in the 19 Appeal Board's decision, which occurs in pages 6, 7 and 8 of 20 the slip opinion, is they ignored the fact thatLthe onsite
. 21 licensing board had already resolved the adequacy of the l 22 onsite plan. Had reached a final decision in March of 1987 23 and had sent that part of the . case upward. So that you did 24 not have jurisdiction ~over that in the first instance; that
-25 other board did.
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25186 1 Jurisdiction at that properly -- over onsite 2 planning issues - properly rested with the Commission or --
3 JUDGE SMITH: As to either board. As to either 4 board, the onsite or the offsite. Either board had 5 jurisdiction over it because of res judicata.
6 MR. TURK: That's right. Over onsite planning 7 issues. That is, the adequacy of an onsite emergency plan.
8 That then went up to the Appeal Board and the Commission.
9 MR. TRAFICONTE: Your Honor, that --
10 MR. TURK: And incidentally, at page 8 the Appeal 11 Board makes reference to an argument that the Staff had 12 made, saying that there is no jurisdiction before either l 13 board, and I don't think they properly understood our 14 argument.
15 MS. SELLECK: Your Honor, I don't mean to 16 interrupt the Staff, but I do think it would be wiser if we 17 put this off until 10:00 tomorrow morning, argument on this )
18 matter.
19 JUDGE SMITH: Yes. I'm glad you pointed it out )
20 because it is a point that we hadn't fully considered.
, 21 MR. TRAFICONTE: Well, in considering that point 22 between now and 10:00 tomorrow morning, I would just want to 23 reiterate that we're talking about an exercise contention. , '
24 So whatever is true about the status of the plan, the onsite 25 plan having already been litigated, once there is an l
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25187~
1 exercise of a plan, whetherLit's an onsite plan or an 2 offsite plan, the exercise -- if a contentions raises a 3 fundamental flaw as revealed by the exercise,: that 4 contention is to be litigated before a licensing board.
5
~
So Mr. Turk,'I think, ignores the fact --
6 JUDGE SMITH: But the. Commission already found 7 that the onsite plan'did not have any fundamental flaws.
8 MR. TRAFICONTE: Not pursuant to an' exercise, Your 9 Honor. The exercise that's presently being litigated is the 10 June '88 exercise which we, through our contentions,. allege 11 raised a fundamental flaw in the onsite plan.
12 It's no different than at Shoreham, for example, 13 where the litigate the offsite plan. A licensing board 14 finds it adequate as a plan. And at some future point there 15 is an exercise of that plan, and the same issues that were 16 already litigated pursuant to the plan litigativa may well 17 be relitigated, if you will, or litigated another time, 18 because the exercise. reveals that what were thought'not to 19 be defects may well be defects.
20 So the issue of res judicata and --
. 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
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i 25188 !
1 JUDGE SMITH: If we were to resolve all issues in 2 this case in favor of operating Seabrook and a full power 3 licensed is issued, do you think that you could raise in the 4 June of 90 exercise, if that's when it is, contentions j
5 challenging the adequacy of these plans? q 6 MR. TRAFICONTE: No, Your Honor.
7 If full-power licensing issues before June of 90, B we believe we would have to seek, depending on the -
l l 9 procedural posture, we would either have to seek to reopen 10 the record. Or depending on the posture, we would have to 11 file a 2206 petition.
i 12 JUDGE SMITH: Yes.
13 MR. TRAFICONTE: But I think the operant fact 14 there would be that a full power license decision would --
15 the predicate for that is that that full power license 16 decision would have had to have been made.
17 If it is no'. made by June of 1990, to use that 18 example, then just as at Shoreham the second exercise was ,
19 litigated because it was material and relevant, so would the i
20 next full participation exercise, if it precedes the 21 issuance of a full power license, the next full ,
22 participation exercise would be 1.itigable.
~
23 I mean we may all find that to be quite t
24 astonishing as a matter of efficient, rationale process.
25 But it seems to me that's the law that NRC --
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25189 1 JUDGE SMITH: Of course, his argument is where i 2 does jurisdiction lie. I' understand it.
3 MR. TRAFICONTE: Yes.
4 Jurisdiction in this case evolved to this Board' 5 because it's an exercise contention, and this Board had 6 jurisdiction over the full participation exercise.
7 JUDGE SMITH: Yes, all right.
- 8 Well, let's wait until 10:00 and we'll be Letter 9 prepared for it.
10 Okay, now, the first one is Ms. Mitchell's motion?-
11 MR. BROCK: Mitchell, Your Honor.
12 MS. SELLECK: There are two motions, Your Honor.
13 One doesn't -- it relates to Ms. Mitchell only insofar as.
- 14 she's the only witness the Mass AG has proffered, or anyone N 15 has proffered on the Contention TOH NECNP EX-2. And the 16 motion is to dismiss that Contention TOH NECNP EX-2.
17 MR. BROCK: That's correct, Your Honor.
18 There is a motion to dismiss that contention that 19 Ms. Selleck has just identified. And there is'an 20 alternative motion in limine.
. 21 The motion to dismiss would seek exclusion of the 22 entire Mitchell testimony, whereas the motion in limine runs 23 to only portions of the Mitchell testimony. I'll deal with-24 the motion to dismiss first.
25 JUDGE SMITH: Would you let me find my papers?
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i 25190 1 MR. BROCK: Sure.
2 (Pause to locate documents. ) ,
3 MS. SELLECK: Your Honor, I have extra copies of
~
4 the two motions if that would be helpful.
5 JUDGE SMITH: Yes. Thanks.
6 (The Board reviews documents.)
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7 JUDGE McCOLLOM: Ms. Selleck, what paragraph did 8 you refer to?
9 What page and what paragraph?
]
10 MS. SELLECK: Okay. {
1 11 I'm not counting the footnotes. This would 12 be -- let me get the latest version of the contentions.
13 The paragraph of TOH NECNP EX-2 that the Mitchell 14 testimony addresses are the first sentence of the basis that j 15 begins with the words, "During the exercise". That's on 16 page 126.
I 17 And then the ninth paragraph, which is on page !
18 129, starts with the words, "At 6:30 p.m.". That's quoted, 19 sort of reprinted in the Mitchell testimony, that paragraph 20 that begins, "At 6:30 p.m.".
21 The seventh paragraph, which is the one that the l
- 22 Board decided alleged enough of a pattern to admit the 23 contention, is on page 128, the first full paragraph that .
24 starts, "With so many different protective actions being 25 ordered". And that's the paragraph in our motion that we Heritage Reporting Corporation I (202) 628-4888 l
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,_s 1 say-is not sponsored by a witness. q
_( ) 2 JUDGE SMITH: And that's.the.one that we saw a 3 pattern in.
4 MS. SELLECK: That's right.
5 JUDGE' SMITH: Yes.
6 All right, now, is it convenient-to take up'both i 7 motions at the same time, or can we take them up one at a 8 time?
9 MR. BROCK: I'd rather take the up' the motion to 4
10 dismiss first, Your Honor, if that's convenient.
l 11 JUDGE SMITH: All right.
1 12 MS. SELLECK: Yes. What it would do is just i
13 render the Mitchell testimony moot.
- 14 JUDGE SMITH: All right.
( 15 MS. SELLECK: It doesn't exclude it. It does away 16 with the contention, i 17 MR. BROCK: Your Honor, the testimony, as the 18 Board has in front of it, la Sandra Fowler Mitchell, and-as I
19 identified in the testimony she is the emergency management l l
20 director for the Town of Kensington, New Hampshire, has been l 1
. 21 for the past three years. And she is also, as the testimony 1 i
22 states, the official representative for the town with '
23 respect to the Seabrook litigation. ;
24 JUDGE SMITH: Incidentally, isn't she the one that:
25 says that she is not emergency director for nuclear
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1 responses? 1 2 MR. BROCK: I'm not aware of that, Your Honor.
3 She did testify in the New Hampshire proceedings. f f
4 JUDGE SMITH: I think she testified that she is j 5 the, yes, the director for everything except nuclear.
6 MR. BROCK: Well, the town has declined to 7 participate in planning. That may be what the Board has in 8 mind. -
l l
9 JUDGE SMITH: One of the witnesses testified, I I l
10 think this may be relevant, j l
11 MR. BROCK: Fine, Your Honor. I don't recall.
I 12 JUDGE SMITH: One of the witnesses testified, I l 13 believe, that yes, she's the emergency director for the town 14 for every purpose except nuclear response. Let me see if I 15 can find it.
16 Let's go on.
17 MR. BROCK: Thank you, Your Honor, l
18 In any event, that is, as the testimony 19 characterizes, her position. And again, she has been the 20 emergency management director for the past three years.
21 Now the events described in the Mitchell ,
22 testimony, Your Honor, just by way of background, reflect 23 her eye witness observations on June 28 during the exercise
- 24 at the incident field office in Newington, New Hampshire.
25 JUDGE SMITH: They don't depend upon her being the Heritage Reporting Corporation (202) 628-4888
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25193: l i
. 1- emergency director? i
l' 23 Mitchell's testimony on a pattern? That pattern'being many i
24 different protective action; how does that corroborate? 1 25 MR. BROCK: Well, Your Honor, I believe one -- the l L
l Heritage Reporting Corporation l y ,,/ (202) 628-4888 5
t 25206 1 Board is focusing on a part of the basis which was admitted 2 into the litigation.
3 JUDGE UMITH: No , no. The thing that you're 4 forgetting about that is, we would not have seen any 5 possibility of a fundamental flaw in the plan if we had not 6 seen the language of the different protective actions l l
7 constituting a pattern, which could in a judgment call, 8 reveal a fundardental flaw. -
I j
9 MR. BROCK: Okay. )
i' 10 ,
I guess the point is --
11 JUDGE SMITH: So I don't understand how FEMA's 12 report even relates to that at all. You would not have had l
l 13 a contention at all to be accepted if you had not alleged --
i 1
34 MR. BROCK: We had to allege a pattern, Your 15 Honor, I understand that.
16 'l 17 l 4
1 18 19 20 21 ,
22 23 -
24 1
25 l
l l
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25207 1 MS.-SELLECK: Your Honor, if I mightLoffer~a
.rh 2 comment.
3 JUDGE SMITH: Just let me catch up.
4 MR. BROCK: Your Honor, I.just point out the-5 Mitchell testimony --
6 JUDGE SMITH: Wait a minute.
9' 7 (The Board reviews document.)
, 8 ' JUDGE SMITH: Just'give me'.another moment here.
9 (Pause) 10 JUDGE SMITH: All right.
l 11 MR. BROCK: Your Honor,-I think if I could just 12 refer the Board to the.Mitchell testimony, and this would be 13 at page 4 of the testimonyfgoing on to the last page.
l 14 JUDGE SMITH: Yes.
l f' i 15 MR. BROCK: And the Board is expressing the l 16 concern about the pattern. And I think towards the bottom-17 where it's talking about: "There appeared to be a consistent 18 problem with the timely processing and dissemination of 19 information.
20 With regard to thm school population," I'm 21 summarizing a little bit, "I observed confusion among.IFO 22 officials involving protective action recommendations, PARS l
23 Tor students."
l 24 And then: "For example, the. state provided 25 conflicting messages to local EOCs as to whether or not l
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25208 1 parents could pick up their children from schools."
2 And then in addition: "I personally observed the 3 following," it's a quote from the contention. The 4 contention talks about EOC and IFO, they didn't know whether 5 they should have transportation resources provided. They 6 didn't know whether they should stand pat with sheltering.
7 They didn't know what to do. And Mitchell says, I saw this.
8 And, Your Honor, and I guess prematurely referred .
9 the Board to the FEMA report. But that is the confusion 10 over transportation resources. Should they be provided? To 11 whom?
12 JUDGE SMITH: As I sit here right now you have not 13 tied in my mind one bit the FEMA report to this contention.
14 Do you want to try it again? 1 15 MR. BROCK: All right.
16 Your Honor, let me just back off that a second, 17 just to be sure I've addressed the concern of the Board 18 about the pattern, setting aside the FEMA report.
19 I believe the language which I have just alluded l
20 to in the Mitchell testimon; and including the quotation 21 from the contention which talks about confusion between EOC ,
f 1
22 and IFO about transportation resources: should they be '
23 provided? To whom? Who is still being sheltered?
- 24 Mitchell heard these discussions and witnessed l
l 25 this confusion.
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25209 1 So setting aside the FEMA report we believe that 2 that -- what the Board termed confusion over the PARS for 3 students.
4 JUDGE SMITH: Okay.
5 MR. BROCK: Do we shelter? Do we provide 6 transportation.
7 JUDGE SMITH: That's fine.
. 8 If you're going to allege the FEMA thing, I would 9 like to get it either on or out of the argument.
10 MR. BROCK: Fine, Your Honor.
11 So that's the first part of the argument. And 12 just as a separate point: I do think and again I perhaps 13 referred prematurely, but where FEMA makes reference to the 14 sentence I referred to about: "No significant delays or 15 problems were observed in obtaining or dispatching 16 resources," there I think the reference is transportation 17 resources.
18 I think Mitchell, in part, rebuts that.
19 JUDGE SMITH: Oh, I see.
20 Well, okay.
21 MR. BROCK: But the major thrust of the argument 22 is, Your Honor, what was alleged initially in the contention 23 was admitted by the Board --
24 JUDGE SMITH: All right.
1 25 I just want to identify once and for all what FEMA Heritage Reporting 9 (202) 628-4888 Corporation
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25210 1 has to do with it.
2 MR. BROCK: Fine, Your Honor.
3 JUDGE SMITH: We got that.
4 MS. SELLECK: May I respond, Your Honor?
5 JUDGE SMITH: Please.
6 MS. SELLECK: As to the last point about whether 7 Ms. Mitchell's testimony rebuts a FEMA report, that wouldn't 8 be grounds -- I don't see the relevance of that. -
9 JUDGE SMITH: Well, we have ruled on that many 10 times. This still has rebuttal. It has to be somehow 11 connected to a contention.
12 MS. SELLECK: That's correct, Your Honor.
13 What might help the Board put this in perspective 14 is, the Mitchell testimo.ny as offered now isn't the original 15 filed Mitchell testimony. Originally it was a two person 16 panel: it was Mr. Sikich and Ms. Mitchell.
17 The word " pervasive" was in Mr. Sikich's portion 18 of the testimony which has been -- well, it has been 19 withdrawn because it has been rewritten to exclude Mr.
20 Sikich.
21 So to the extent that any pattern was alleged, the ,
22 Mass AG has given up on that allegation. And what we're 23 left with are some observations of Ms. Mitchell that only go -
24 to a couple of pieces of the basis and that's just not 25 enough to allege a pattern.
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25211 1 JUDGE SMITH: Now we did find reading through 2 these many, many, many, many basis with many, many footnotes 3 that they seem to be, as we stated, a series of repeated 4 failures but no one of which revealed a fundamental flaw 5 even if true.
6 And unless you can connect them together that show 7 a common cause, a common pattern attributable to a
. 8 fundamental flaw of the contention, you didn't have a 9 contention.
10 And the pattern that we were talking about was the 11 differing with many -- the allegation of many different 12 protective actions being ordered for different groups of 13 people; that's the pattern.
14 MR. BROCK: Yes, Your Honor.
15 JUDGE SMITH: That's the only pattern that we 16 could find then and could find now that could tend to save 17 your contention.
18 MR. BROCK: Yes, Your Honor.
19 JUDGE SMITH: Otherwise it was going down the 20 drain; it's on its way down.
. 21 Now the only thing left Icr us to do is, 22 unencumbered by your reference to a FEMA report, is to read
~
23 Ms. Mitchell's testimony to see if it fits into that. And I 24 think that you agree that our attention can be focused 25 beginning on the bottom of page 4.
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25212 1 MR. BROCK: I think that summarizes the testimony, 2 Your Honor.
3 JUDGE SMITH: Going.through, perhaps, to --
4 MR. BROCK: The conclusion of the testimony.
5 JUDGE SMITH: -- the conclusion. And one of the 6 things I observe about the very end, in my opinion 7 therefore, even her conclusion doesn't address the magic 8 words that she is going to have to come up. It just shows a -
9 fundamental problem.
10 But we'll just have to read it to see if she 11 appropriately testifies to events which have a relationship 12 to each other sufficient to cause a pattern which in turn is 13 sufficient to reveal or reflect a fundamental flaw.
14 MR. BROCK: Fine, Your Honor. ,
15 JUDGE SMITH: We'll just stop right now and do l
16 that, while we're oriented to it. It's easier to do it now.
17 Is there anything else you think we should mix 18 into it? I know you don't agree about the FEMA report, but 19 that's our ruling.
20 MR. BROCK: Okay.
I 21 Your Honor, I guess -- -
22 JUDGE SMITH: Now, of course, I think also even if it is true that Ms. Mitchell disavowed being an emergency 23 24 director, she is not testifying in this instance in her 25 capacity -- l Heritage Reporting Corporation (202) 628-4888 l
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l 25213 i 1 MR. BROCK: That's correct, Your Honor.
f3 (v) 2 JUDGE SMITH: -- as an emergency director. )
q 3 MR. BROCK: She is just representing her position, l 4 that's correct. But it was not necessary for purposes of j i
5 her observations. l 6 JUDGE SMITH: Right.
7 Because she wasn't participating.
+ 8 MR. BROCK: Your Honor, if I could just nake two l 9 brief points as to the FEMA report. I guess one o'ther point 10 which I think I alluded to, but I want to make clear. I do 11 think a fair reading of the chronologies and PARS which are 12 in the FEMA report will demonstrate that after 1640 thero 13 WPs no PAR for five out of 17 towns, and specifically the 14 schools within those towns.
)
(' ) 15 And I think that evidence also should be taken in 16 conjunction with the Mitchell testimony as to whether or not '
17 we could demonstrate on the whole record whether a 18 fundamental flaw has been presented or not. !
j 19 JUDGE SMITH: Well, it's not a fundamental flaw, n
i i
20 You alleged many, many different protective actions. j
. 21 MR. BROCK: That's correct, Your Honor.
22 JUDGE SMITH: And now you're alleging not enough Q
23 protective actions.
24 MR. BROCK: Well, I'm alleging confusion and -- l 25 JUDGE SMITH: Confusion is not going to do it.
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25214 l 1 It's going to have to be a pattern.
2 MR. BROCK: Well, the pattern, Your Honor --
1 3 JUDGE SMITH: The pattern is confusion. ]
I 4 MR. BROCK: Well, that is certainly a major i 1
5 ele. ment of it, Your Honor. And I think, again, we have l I
l 6 identified the portion of the testimony that best summarizes 1 7 what we think is a pattern of confusion of misconnect in q 8 terms of making PARS. -
9 And we would be using the FEMA report as further l l
10 support for the fact that PARS were not being made or
']
i 11 identified for these schools in these five towns. And the 12 reason being there was a pattern of confusion, these 13 officials did not know what the appropriate PAR should be or I 14 even at that point who is sheltering in the schools.
15 MS. SELLECK: As a point of clarification -- I 16 mean, allegation of fact I'm a little confused. Mr. Brock l
17 said earlier that FEMA's report showed that they were to 18 shelter these five towns until 1900.
19 But what you just said now was different. ]
20 MR. BROCK: I'm not sure it was different, Ms.
21 Selleck. .
)
22 My point is, Your Honor, I think we will use the 23 FEMA report for among other points that after 1640 there l
24 were no PARS, and the reason being Mitchell says, is because ,
1 25 they didn't know what they were doing, they were confused.
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25215 1 JUDGE McCOLLOM: Mr. Brock?
2 MR. BROCK: Yes.
3 MS. SELLECK: That's not in the Mitchell 4 testimony.
5 MR. BROCK: We're talking to the whole record in 6 terms of being able to prevail on a contention, Your Honor.
7 This is a motion to dismiss focusing solely on Mitchell.
8 It's our view, we're entitled to rely on all 9 evidence that will be before the Board, both Mitchell, FEMA, 10 and any cross-examination we would av of the Applicant 11 panel.
12 JUDGE McCOLLOM: Mr. Brock, the attachments to the 13 original Sikich and Mitchell, I see no reference in Ms.
14 Mitchell's -- to any of the attachments; do you have any O 15 statement on what attachments are left?
16 MR. BROCK: We did not reoffer those, Your Honor.
17 JUDGE McCOLLOM: Okay.
18 19 20
- 21 22 23 1 24 1 25 l l
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i 1 MR. BROCK: Your Honor, if I could just intrude
{
2 briefly.
3 Applicant's motion has a footnote at page 2 4 indicating that if the Mitchell testimony comes in, they are 5 going to be offering a panel. We expect to cross-examine 6 that panel as they will cross-examine Mitchell. And at a 7 minimum, Your Honor, we feel it's premature to be throwing 8 out and making a judgment based on evidence both in Mitchell -
9 and in other parts of the record to exclude.the testimony at 10 this time at least.
11 MS. SELLECK: Your Honor, we're not going to offer I
12 that testimony unless it's called for, and so far we j 13 don't --
14 JUDGE SMITH: You can't take credit for their 15 testimony until it's actually offered and cross-examined on.
16 MR. BROCK: That's true, Your Honor. But the 17 point is the motion here is trying to limit the focus to 18 simply Mitchell. And what I am saying is it's broader than
)
19 that, and we think that we should be allowed to developed 20 the whole record before the Board makes a judgment as to the 21 adequacy of the evidence. ,
j l 22 , MS. SELLECK: Your Honor, I did consult the Mass 23 AG's trial brief on this contention generally. And I don't 24 see that there is any specific evidence pointed to here. I 25 mean there are general allegations, but there is no evidence Beritage Reporting Corporation (202) 628-4888
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I 1 in the record, other than the Mitchell testimony, from which q 2 I could determine you were. making youricase.
]
3 MR. BROCK: Well, they have.already presented an 4 Applicant Panel 23, which I cross-examined as to New 5 Hampshire schools,'Your Honor. And there is -- ]
6 JUDGE SMITH: You know, we-say, all'right, weiare
.7 going to confer and --
- 8 MR. BROCK: I'm sorry, Your Honor.
9 JUDGE SMITH: -- now-comes a new argument.
10 MR. BROCK: I'm sorry.
11 JUDGE SMITH: A new piece. You know, what is it-12 about 23?
13 MR. BROCK: Just, Your Honor, my point is that
_s 14 there is additional evidence with respect to'the PARS for.
( 15 schools and the adequacy of whether or not Objective 19.was 16 met. And it is difficult at'this point -- essentially we 17 would have to be offering a full panoply of proposed l 18 findings for the Board on New Hampshire-schools that's'been 19 put in through their panels, through FEMA and through 20 Mitchell. And we think at a minimum, it's premature.
. 21 And if we ultimately do or don't prevail on the.
22 contention, admit the evidence and'then let the Board make 23 the judgment.
24 JUDGE SMITH: Well, if they have put in already 25 other evidence which supports your. contention, I guess:you
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25218 1 can cite that. But you can't rely upon evidence that they 2 have not put in and would only -- you can't rely upon cross-3 examination of their surrebuttal to this testimony.
4 MR. BROCK: All right.
5 MS. SELLECK: Your Honor, I don't recall any .._
6 Applicant witness or Mr. Doncvan or anyone else in this ---
7 proceeding testifying to this paragraph seven pattern, so 8 many different protection actions. This kind of damaging .
9 testimony just has not been given.
10 MR. BROCK: Well, I think it's a question of how 11 you read the record, Your Honor.
12 FEMA obviously said that --
13 JUDGE SMITH: Well, now is your time for it. g 14 MR. BROCK: All right.
15 The evidence, in addition, Your Honor, would be 16 the FEMA report, and I've cited the parts I believe it 17 establishes with respect to a failure to follow through on 18 protective action recommendations. Reason being, Mitchell offers, confusion among New Hampshire decisionmakers.
19 20 Additionally, Your Honor --
21 MS. SELLECK: Could I have a cite'for that .,
22 failure? _
23 MR. BROCK: May I make one other point, Ms.
24 Selleck?
25 Applicants' Panel 23, as to the scope of the Heritage Reporting Corporation (202) 628-4888 n
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25219 1 exercise, also did touch upon the substantive PAR process 2 for schools. And we, I think in crossing them demonstrated 3 that in fact that that process was very truncated, that it 4 did not follow through with the full communications to 5 school officials as required by the plan.
6 JUDGE SMITH: You have to get back to paragraph 7 seven. I guess I've said it enough times that --
. 8 MR. BROCK: All right, Your Honor.
9 JUDGE SMITH: With so many different protective 10 actions being ordered for different groups of people.
11 Quantity of PARS to different groups of people.
12 MR. BROCK: All right.
13 JUDGE SMITH: That is the only thing that got your 14 thing in, and there we had to reach way out and get it to 15 begin with.
16 MR. BROCK: All right.
17 JUDGE SMITH: So you keep alluding to evidence 18 that doesn't say that. It doesn't even --
19 MR. BROCK: Well, Mitchell, I think, and the 20 contention, Your Honor, at the concluding --
, 21 JUDGE SMITH: But you just got our mind off on 23 22 now and you paraphrased 23 which doesn't do what the basis 23 has to do.
24 MR. BROCK: All right.
25 JUDGE SMITH: And what the --
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25220 1 MR. BROCK: I would agree it is more broad than ,
2 that, Your Honor. It focused more broadly on how PARS for 3 New Hampshire for schools were carried out. But it doesn't I
4 focus specifically on the pattern. I I
5 JUDGE SMITH: You are all done? l 1
1 6 MR. BROCK: Yes, Your Honor.
7 (The Board confers.)
8 JUDGE SMITH: All right.
- 9 We are going to grant the motion to dismiss the 10 contention. I've gone back over the contention. I recall 11 how we struggled with it. It'has many bases. We tried to, 12 because the matter was brought to our attention by the Staff 13 who says there was no pattern, we went through it. They 14 agreed there had to be a patterr for any of these individual 15 bases to reveal a fundamental flaw.
16 We went back through all of these bases looking 17 for a pattern. We could find none with the exception of the 1
l 18 one we cited in our memorandum and order accepting the i
19 contention, and that is, there was a profusion of PARS. And 3 20 that is the only pattern that we could see.
21 We couldn't even see it. That's the best we could s 22 infer. Given the benefit of the doubt, we put the Attorney )
}
4 23 General or we put the Interveners on strict notice that 1
24 their evidence would have to demonstrate such a pattern.
25 That pattern being many different protective actions all Heritage Reporting Corporation ;
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25221 l 1 ordered for different groups.
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( f 2 And now we-have the testimony offered. .The
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3 testimony only by the broadest of all interpretations even
]
4 touches on it. And clearly the testimony was not intended 5- by Ms. Mitchell in the'first instance to' address a profusion' i 6 of many protective orders. It seems to be an after-the-fact 7 argument which in itself isn't fatal. But we'look at it and
, 8 there is not even a'particular-reference in the testimony to 9 .the quantity. j 10 The closest you come is to-the statement beginning 0 11' on the bottom of page 4, "For example, the. state provided 12- conflicting messages to local EOC as to whether or not 13 parents should pick up their children from' school."
l i 14 And that doesn't do it. The example that you have
,e
'\ 15 given of the contentions, all that does is restate as a 16 stand-alone circumstance, and of course the stand-alone 1
.i 17 circumstance cannot in itself establish F. pattern. Even her j j
18 cenclusion does not pick up a pattern that we looked'at.
19 It was a judgment call. It was a judgment call on i
20 our part,'and probably the fault of what happened is this.
. 21 That we read something into the contention which wasn't 22 really there, but we did it to give you an opportunity,.in 23 case we were wrong, to come forward and show us that that ~!
24 interpretation was the correct one.
25 So the contention is dismissed.
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25222 1 MR. BROCK: Your Honor?
2 JUDGE SMITH: Yes.
3 MR. BROCK: We would just be offering the Mitchell 4 testimony and formally offering and having that whatever the 5 next exhibit would be.
6 JUDGE SMITH: Okay. 115, I believe.
7 MR. BROCK: Okay.
8 (The document referred.to was .
9 marked for identification as 10 Mass AG Exhibit No. 115.)
11 MS. SELLECK: Applicants, for the record, object.
l l
l 12 JUDGE SMITH: The offer of the testimony, Exhibit 13 115, and Applicants object.
14 MS. SELLECK: Yes.
t 15 JUDGE SMITH: And the objection is sustained.
16 (The document referred to, 1
17 having been previously marked 18 for identification as 19 Mass AG Exhibit No. 115 was 20 rejected.)
21 JUDGE SMITH: We won't-take up anything more this l .
l 22 evening. We will adjourn until 9:00 a.m. And then at that 23 10:00 we' re going to have the arguments, or no earlier than
- 24 10:00, the arguments on scope.
25 And then what are the other motions in limine we Heritage Reporting Corporation (202) 628-4888
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25223 1 will have to look at? Harris?
(O). 2 MS. SELLECK: At 9:00, Your. Honor, I believe we-3 have Harris.
4 JUDGE SMITH: Harris..
l 5 MS. SELLECK: But before that'is the SAPL fire 6 fighters.
7 JUDGE SMITH: Oh, the SAPL fire fighters.
- 8 EMS . SELLECK: And that will probably take us to 9 10:00.
10 JUDGE SMITH: Right.
11 MR. FIERCE: Can we inquire what the Applicants-
, 12 know yet, if anything, about their Panel No. 177 13 MS. SELLECK: You mean whether they are available
~. 14 to go on,_Your Honor? And as I understand - -
k ,)
m 15 JUDGE SMITH: Mr. Dignan -- j 16 MS. SELLECK: He's reexamining exactly how much of 17 the testimony will be offered tomorrow.
18 MR. FIERCE: Just beware, that's_what we-are 19 prepared to do tomorrow. There is.no other witness who is
)
20 ready tomorrow to come on, as we understand it.
- 21 MS. SELLECK: Yes, we know that.
22 MR. FIERCE: So we may be done early if the panel 23 is withdrawn.
24 MS. SELLECK: We understand that. And I believe 25 the next matter would be --
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25224 1 MR. TROUT: There are also several more motions in 2 limine.
3 MS. SELLECK: Yes, there is also a motion on 4 testimony by Dr. Adler.
5 1R. FIERCE: Not ready yet .
6 MS. SELLECK: Okay.
7 MR. FIERCE: Haven't even looked at it.
8 MS. SELLECK: The next item would have been Ms.
- 9 Mitchell; is that correct?
10 Applicants would then determine whether or not the 11 remaining portions of Applicants' No. 25 that were not 12 specifically addressed in Ms. Mitchell's testimony, but to 13 other pieces, whether or not we would offer that. That 14 would be the next order of business.
15 JUDGE SMITH: So it may very well be if Mr. Dignan 16 withdraws 17, we just won't have any testimony tomorrow. We 17 will have argumento. They seem to have a way of expanding.
l 18 E. JF.: / ECK: Well, the next order of business ;
i 19 would have LG ; the SAPL fire fighters. And then after 20 that Applicants' Panel No. 25, if it goes on. l' 21 JUDGE McCOLLOM: And then Harris.and then Carter? -
22 JUDGE SMITH: Well, the SAPL -- excuse me.
23 JUDGE COLE: What about Carter?
. s 24 MS. CHAN: I believe it's Cohn.
i 25 MR. TROUT: There is a motion in limine on Carter Heritage Reporting Corporation (202) 628-4888 l
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25225 1 as well.
2 JUDGE McCOLLOM: I just wondered if it would be 3 ready.
4 MS. SELLECK: We have a few motions in limine now.
5 Wo.have the SAPL fire fighters, Dr. Harris.
6 MR. FIERCE: Harris tomorrow?
e 7 MS. SELLECK: Yess
- 8 MR. FIERCE: SAPL' fire fighters tomorrow.
9 JUDGE SMITH: But actually,. assuming _we' deny the 10 motion on SAPL fire fighters and Harris, they wouldn't be 11 ready to testify either, is that correct?:
12 MS. DOUGHTY: Correct, Your Honor. The fire 13 fighters are prepared to come in 9:00 a.m. on Wednesday
, 14 morning.
I 15 JUDGE SMITH: Yes.
16 MR. FIERCE: And Dr. Harris, as Mr. Traficonte 17 indicated this morning, is only available the-week of the 18 19th.
19 JUDGE SMITH: All'right.
20 So unless we have 17, we are not goingLto have any
, 21 testimony tomorrow, it seems.
22 MS. SELLECK: Well, the next thing up then, Your 23 Honor, is the Mass AG's Witness Cohn on communications.
24 That would have been scheduled for Friday, and-that would be 25 the next order of business.
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25226 1 Is he available to come in earlier than that?
2 MR. FIERCE: I have no idea. He's not my witness.
3 MS. SELLECK: It might be worth an inquiry just, 4 you know, in the event that things move more rapidly than 5 anyone expected.
6 MR. FIERCE: Well, it's just so hard to tell until F
7 we know what you are doing with 17 and the supplement to 17.
8 That's where we are right now, is neading to know what's
- 9 going on with that.
10 MS. SELLECK: I believe we can all rest assured 11 that -- my understanding is that at least scme part of 17 12 will be offered, so there will be that panel. I don't know 13 the extent of it.
14 JUDGE SMITH: If there's nothing further then, we 15 will adjourn until 9:00 a.m.
16 (Whereupon, at 5:01 p.m., the hearing was 17 recessed, to resume at 9:00 a.m., Tuesday, June 13, 18 1989.)
19 20 I 21 .
22 23 24 25 Heritage Reporting Corporation (202) 628-4888 l
CERTIFICATE x
This is to certify that the attached proceedings before-the I United States Nuclear Regulatory Commission in the matter of: i I
- Name: Public' Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2) j l l Docket No: 50-443-OL -j 50-444-OL d (Off-site Emergency Pl'anning')
Place: Boston, Massachusetts Date: June 12, 1989 !
1
=
I were held as herein appears, and that this is the original.
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 j direction of the court reporting company,~and that the transcript is a true and accurate record of the foregoing '
proceedings.
/S/ 1 ,
(Signature typed): Donna L. Cook Official Reporter Heritage Reporting Corporation O
Q HERITAGE REPORTING CORPORATION.
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