ML20244E227
| ML20244E227 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/20/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8538 ASLBP, OL, NUDOCS 8904240359 | |
| Download: ML20244E227 (96) | |
Text
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JR G \\A-O UNITED STATES NUCLEAR REGULATORY COMMISSION L
ATOMIC SAFETY AND LICENSING BOARD 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 4
O EVIDENTIARY HEARING l
l Pages: 19853 through 19947 Place: Bostol., Massachusetts
,ggg/,[M8d Date:
April 20, 1989
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O O $ o; HERITAGE REPORTING CORPORATION opuntRW 122e L Street, N.W., Suite 60s 8904240359 890420 Wasidagten, D.C. 20005 DR ADOCK 0500 3
g
1 fx 19853
-( )
UNITED STATES NUCLEAR REGULATORY COMMISSION 4'
ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
pL
)
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
- Thursday, i
April 20, 1989 Auditorium Thomas P.
O'Neill, Jr.
i Federal Building 10 Causeway Street Boston, Massachusetts 7-V.
The above-entitled matter came on for hearing, pursuant to notice, at 8:38 a.m.
i BEFORE:
JUDGE IVAN W.
SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington,-D.C.
20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE RICHARD F.
COLE, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Heritage Reporting Corporation (202) 628-4888 i-
-.-_-___--______.________,_,______.__,-__,a_..
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'19854'.
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APPEARANCES:-
t For the Apolicant:
THOMAS G. DIGNAN, JR.,
ESQ.
GEORGE H. LEWALD, ESQ..
KATHRYN A.
SELLECK, ESQ.
p T
JAY BRADFORD SMITH,.ESQ..
JEFFREY P.
TROUT, ESQ.
. GEOFFREY C. COOK, ESQ.
Ropes & Gray rs.
One' International: Place Boston, Massachusetts 02110-2624 For the NRC Staff:
SHERWIN E.
TURK, ESQ.
ELAINE I.
CHAN, ESQ.
EDWIN J. REIS, ESQ.
Office'of General Counsel
~
U.S.. Nuclear Regulatory Commission Washington, D.C.
20555
'For the Federal Emeroency Manacement Acency:
'O-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,.V.ST. 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 Boston, Massachusetts 02108 O
Heritage Reporting Corporation (202) 628-4888
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L APPEARANCES:
~(Continued) y For the State?of New Mm=nshire:
GEOFFREY M. HUNTINGTON, : ASST. ATTY. GEN.
Statelof New Hampshire 25 Capitol Street Concord, New Hampshire 03301 For the' Seacoast Anti-Pollution Leacue:
' ROBERT A. BACKUS, ESQ.
Backus, Meyer &. Solomon-
'i.
116,Lowell Street P.O. Box 516 Manchester, New Hampshire 03105 L*
JANE' DOUGHTY, Director Seacoast Anti-Pollution League
- 5 Market Street Portsmouth, New Hampshire' 03801 For the Town of Amesburv:
BARBARA J.
SAINT ANDRE,,ESQ.
Kopelman and Paige,'P.C.
77, Franklin. Street' Boston,' Massachusetts WILLIAM LORD Town Hall Amesbury, Massachusetts 10913 For the City of Haverhill and Town of Merrimac:
ASHOD N. AMIRIAN, ESQ.
P.
O.
Box 38 Bradford, Massachusetts 01835 For the City of Newburyport:
l BARBARA J.
SAINT ANDRE, ESQ.
JANE O'MALLEY, ESQ.
Kopelman and Paige, P.C.
77 Franklin Street Boston', Massachusetts 02110
.LO Heritage Reporting Corporation (202) 628-4888
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~ APPEARANCES:
'(Continued)
For the Town of Newburv:
l.
R.
SCOTT HILL-WHILTON,.ESQ.
Lagoulis, Clark, 11111-Whilton & McGuire 79 State Street f'
Newburyport, Massachusetts 01950
'For the Town of Salisburv:
CHARLES P. GRAHAM, ESC.
Murphy and Graham 33 Low Street Newburyport, Massachusetts 01950 For the Town of West Newburv:
JUDITH H. MIZNER, ESQ.
Second Floor ~
79 State Street Newburyport, Massachusetts 01950 For the' Atomic Safety and Licensino Board:
ROBERT R. PIERCE, ESQUIRE Atomic Safety-and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 4.
O Heritage Reporting Corporation (202) 628-4888
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19857/19858
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IQ 1EEEX
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EXHIBITS:
IDENT.
REC.
REJ.
DESCRIPTION:
)
Applicants':
L 63 19859 19860 Redacted set of l
Barnicle notes 7
64 19860 19861 Unredacted set of Barnicle notes.
65 19861 19863 Applicants' interrogatories and request for production of documents.to all Interveners and participating local' governments concerning.
JI Contentions 1 through 26 66 19863
.19864 Answers and responses of the Mass AG to Applicants' interrogatories and request for production concerning JI Contentions 1 through 26 67 19864 19868 Applicants' motion to compel further responses by Mass AG to Applicants interrogatories and requests for production of documents 68 19868 19869 Joint stipulation regarding Applicants' motion to compel 1
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EB2CEER1HGH 2
JUDGE SMITH:
Good morning.
3 Is there any preliminary business?
4.
MR. TROUT:
Yes, Your Honor.
5 Yesterday the Board asked that certain items be 6
offered as exhibits-as a result of yesterday's rulings.
And 7
Applicants have Applicants' Exhibit 63 through 68 to offer 8
at this time.
9 Exhibit 63 is the -- and I apologize.
We did not 10 make copies of these exhibits for the Board and for the 11 parties at this time.
We will undertake to do that and get 12 them to the Board and the parties next week, but we kind of 13 scrambled to get a complete set to give to the reporter this 7-14 morning.
15 Applicants' 63 is the redacted set of Barnicle 16 notes, and I offer that at this time.
17 (The document referred to was 18 marked for identification as 19 Applicants' Exhibit No. 63.
20 JUDGE SMITH:
Do you object?
21 MR. BROCK:
No, Your Honor.
22 JUDGE SMITH:
Applicants' Exhibit 63 is received.
23 24 25
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.(The document referred'to,-
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having been.previously mark'ed 3
.for-identification as-4 Applicants' ' Exhibit'No. 63-5-
!was received in evidence.)_
6 MR. TROUT:
Applicants' 64 is the unredacted' set U
7
-of notes relating to the Barnicle testimony.
I. offer that
~
8 at'this time.
9-(The document referred to was; 10 marked for identification as.
11
. Applicants' Exhibit No. 64.)?
12 JUDGE SMITH:
Do you object?
i 13.
MS. GREER:
No.
I would just-like a F
11 4 clarification.
15 Does the unredacted also include the Barnicle
^
16 notes?
Are you doing a double load'in there?
17 MR. TROUT:
Yes.-
3 18 MS. GREER:
Okay. -So 64 includesu63 then?
19 MR. TROUT:
Yes.
l t
20 JUDGE SMITH:
And, of course, we understand the l
21 Barnicle' notes to be the entire set that was under 1
22 discussions, and not just literally those notes of Barnicle.
l 23 MR. TROUT:
My understanding is that 63 are just 24 the notes of Katherine Barnicle, and 64 are all the notes
~
25 that relate to the subject matter of the Barnicle testimony, LO Heritage Reporting Corporation (202) 628-4888
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l' including notes.'of-Kathryn Barnicle.
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2L JUDGE' SMITH:
All right',n 64 is received.
3 (The document referred to, 4-having'been previously marked 5
for identification as' 6
Applicants' Exhibit No. 64 7
was received in evidence.)?
- e'
.8-MR.-TROUT:
Applicants'.65 is the complete set of 9"
-interrogatories filed'by the Applicants in October 1988, 10-
.both the October lith-and the October 14th set'.
And I. offer
~11 it at this time.
12 (The document referred to was 13-marked for identification as.
~14
-Applicants' ' Exhibit No. 65.- )
15 MS. GREER:
Excuse me.
I'm not sure that the
-16 October lith set ' is any way rt. levant.
..1 17 Does that include -- ch.
~
'18.
MR. TROUT:.This is=the complete set of 488.
It 19' was broken up over -- we filed it over two days.
4 20 MS. GREER:
Right.
But my recollection is that
'21-the first set only applied to Contentions, I think something 22 like 1 through 30 or something, but did not include any of 23 the contentions for which attorney / client privilege was 24 asserted.
25 Am I incorrect in that?
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. ell, you are right.
The first set.is 1
MR.. TROUT:
W 2
l'through 26.
My problem with just offering the second set'
(
3 is that all the subsequent documents, Mass AG's answers, the 4
motion to compel and the joint stipulation all' refer,to both 5
sets.
6 JUDGE SMITH:
So it's in just for context.
7 MR. TROUT:
That's right.
8 MS. GREER:
Okay, if it's in merely on that basis, 9
because otherwise I believe it's absolutely irrelevant to 10 this proceeding.
And, frankly, I'm not even sure you need 11 to read the latter documents as it pertains to the question 12 of attorney work product.
13' JUDGE SMITH:
Well, you understand these exhibits 14 are not being offered for the Board to make findings on.
15 The exhibits are being offered, in fact, they are being 16 offered to have a complete record for appellate purposes.
17 MS. GREER:
If that is the only purpose they are 18 being offered for, then we have no objection.
l.
19 JUDGE SMITH:
That's correct, because we reviewed 20 the. oral extractions of them and they will not be available 21 for proposed findings.
22 MS. GREER:
Fine.
23 JUDGE SMITH:
I mean on this issue.
That's right, 24 they are not available for proposed findings.
25 MS. GREER:
Fine.
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1 JUDGE SMITH:
We're just making a complete _ record a ~
2 for appellate review, for review purposes.
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3 MR. TROUT:
Applicants offer 65 at this. time.
4 JUDGE SMITH:
A11~right, with that limitation, 5
.it's received..
6 (The document referred to, 7
having.been previously marked 8
for identification as
'9 Applicants' Exhibit No. 65 e
10 was received in evidence.)
. :L1 MR. TROUT:
Applicants' 66 is the complete set of-12 responses which the Attorney General made between December 13:
19,- 1988 and~ January 20, 1989, to the interrogatories which'
~
14 constitute Applicants' Exhibit 65.
And those again are.
15 being' offered solely for the purpose of filling out the-16 record on the point of yesterday's rulings.
17 (The document' referred to was
,~
' 18' marked for identification as 19' Applicants' Exhibit No. 66.)
20 JUDGE COLE:
What was the first date you 21 mentioned?
22 MR. TROUT:
December 19, 1988.
23 MR. BROCK:
And are not being offered for proposed 24-findings; is that right?
25 MR. TROUT:
That is correct.
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N' MR.-BROCK:
No objection.
1 l} E 2
~ JUDGE SMITH:
Applicarte' Exhibit 66 is received 3
on that. basis'.
4 (The document referred to, 5
having been p'reviously marked-
=
6 for identification as 7
Applicants' Exhibit No. 66 8
was received in evidence.)
9 MR. TROUT:
Applicants' Exhibit 67'is Applicants' 10 motion to compel, responses to interrogatories dated January 11 3,
1989, offered with the same limitation.
12, (The document referred to was 13 marked for identification as 14 Applicants'~ Exhibit No.'G7.)
15 MS..GREER:
And the stipulation is in there too?
16 MR. TROUT:
The stipulation would.be'68.
17 JUDGE SMITH:
I think that I've been inconsistent 18 in the way I have handled this problem.
And I don't know if 119 consistency'is all that important.
But the purpose of these 20 documents is so that there is a complete record for review.
21 You offered the Barnicle testimony and it was 22 rejected, so you gave it an exhibit number, offered it and 23 it was rejected.
24 The only purpose of the exhibits in this series 25 now, even though the Board called for it, the Board wanted iO l
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the record to be complete to demonstrate why its rulings 2
were made.
Really, that wasn't a. good thought.because our 3
rulings were made based on oral representations.
4 It is in the Applicants' interest to have the 5
record. complete on'that proffer..And I think we should 6
follow the practice that we did.the other day when Mr.
7 Dignan was faced with the same situation.
And you offer 8'
them and we reject.them for irrelevance or whatever, but i
9 they get in the same mode of exhibit as the rejected 10 exhibits.
It's sort of a side category.
11 MS. GREER:
So the equivalent that it would be, if 12 it was under Massachusetts practice, would be marked for 13 identification, but instead under the procedure that has
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14 been adopted here, it's going to be in the rejected exhibit 15 file.
16 MS. GREER:
Okay.
17 JUDGE SMITH:
So you have a complete rejected 18 exhibit file.
So if you don't object to that procedure, 19 we'll change our rulings and have Exhibit 63, 64, 65, 66 and q
20.
67 in the rejected exhibit file for the reasons sated.
21 MR. TROUT:
Let me consult for a moment.
22 (Counsel confers.)
23 MR. TROUT:
Your Honor, we have one problem with 24 such a procedure as opposed to the procedure of having them 25 admitted for this single very limited purpose.
And that is O
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'that'one of:these documents is a stipulation.
And to have-a 1
44 2-stipulation' rejected by;the Board has a legal significance 3
.above and beyond its evidentiary significance.
4 JUDGE SMITH:
Yes, I think I'm causing confusion 5
1here unnecessarily.
6 MS. GREER:. I think I can help Mr. Trout out.
f 7
JUDGE SMITH:
I'm beginning to see'the value in 8
'having your identification and not offered system.
9 MS. GREER:
But there's a difference here.
If, in 10
. fact, it was a' stipulation that was offered to the Board for 11 the Board's approval and the Board rejected it,-that would 12 have more legal impact.
But this stipulation'is not being 13-offered to the Board for approval.
-It's merely being
(
14
. offered as an exhibit to complete the record.
And so I 11 5 don't think that'the problem-that's being posed here is in 16 fact a problem.
17 JUDGE SMITH:
In any event,.'I think that the x
18 purpose of the series of exhibits is understood.
And 19 whether we call it the rejected exhibit file or not, it's 20 understood that they cannot be the basis for factual q
21 findings.
22-MR. TROUT:
Yes, Your Honor.
23 JUDGE SMITH:
I don't know if the stipulation 24 creates a problem with not being available for factual 25 findings, however.
I am not aware of that.
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- 1 MR. TROUT:
That'does not compromise itLin;the
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-2 manner that --
- JUDGE SMITH:
You.~are happy with that.
A111right, i
4
-Whatever it is let's return to our original ruling; and the 5
exhibits are received,.not available for. proposed findings, 6'
and are to' accompany the rejected..Barnicle exhibit, 7
MR. TROUT:
I think we were up to 67.
g,.
8-JUDGE. SMITH:
Yes.
9 MR. TROUT:
And Applicants have offered 67.
10 MR. DIGNAN:
Your-Honor, may I interjectJone thing 11
-here?
12 I assume that there is rooffer of any part of 13 these documents for another purpose.
A separate ruling.can
'14 be made and make them available.
l'5
. JUDGE SMITH:
That's right.
If they have their 16
-own relevance for other purposes, this is not a final. thing.
'17 All right, go ahead, Mr. Trout.
181 MR. TROUT:
I offer 67 which is the motion to
.19 compel.
'20 JUDGE SMITH:
Same ruling.
That's the way to 21 handle it, the same ruling.
22 23, 24 25
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1 (The document _ referred to, 2
having been previously marked 3
for identification as 4
Applicants' Exhibit No. 67 5
was received in evidence.)
6 JUDGE COLE:
Let me remember what it was.
7 (Laughter) 8 MR.. TROUT:
Applicants' 68 is the joint 9
stipulation regarding Applicants' motion to compel.
It's 10 dated January 18, 1989.
11 (The document referred to was l
12 marked for identification as 13 Applicants' Exhibit'No. 68.)
l
/)s -
14 JUDGE SMITH:
What is that?
(_
15 MR. TROUT:
The title of it is " Joint' Stipulation 16 Regarding Applicants' Motion to Compel".
17 JUDGE SMITH: -All right.
f 18 MR. TROUT:
Motions, plural, to Compel, and the 19 date is January 18, 1989.
20 Applicants offer it with the same limitation.
21 JUDGE SMITH:
All right, received with that 22 limitation.
23 24 i
25 (A^)
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li (The document referred to,-
2 having been previously marked 3
for identification as 4
Applicants' Exhibit No. 68 5
was received in evidence.)
6 JUDGE SMITH:
We don't want those exhibits.
Since 7
we are'not going to be using them, you don't have'to provide 8
us copies of.them.
9 MR. TROUT: LVery well, Your Honor.
A 10 Your Honor, I believe the next order of business 11 is SAPL's motion for reconsideration of the rejection of the 12 testimony of Dr. Leaning.
13 JUDGE SMITH:
As we closed yesterday, we had 14 reversed our ruling on our interpretation of the contentions 15 with respect to radiologically exposed persons, and we 16 recognize that the policy statement did say planning 17 requirements for the short-term treatment of radiologically 18 exposed persons.
Now it is the responsibility of the 19 Interveners to demonstrate that Dr. Leaning's testimony is l
20 consistent with Commission regulations, although we 21 recognized that Ms. Greer's statement that the plan itself, 22 the voids in the plan itself would tie Dr. Leaning's 23 testimony into the proceeding.
Something more than that is 24 required.
l 25 To summarize, the Board has read Dr. Leaning's (2)-
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1 testimony and we simply don't know what we would do with it 2
as adjudicators deciding the legal and factual issues before 3
us.
4 Now, with respect to Dr. Leaning's general 5
competence and testimony and observations, we think-that in '
6 a larger sense she has obviously put a lot of thought into 7
these issues and the considerations.
And we think that a 8
certain amount of appreciation should be passed on to her 9
for that effort.
And we would refer her testimony, if we 10 were to decide now without hearing further arguments, refer 11 her testimony to FEMA and to Mr. Congel of the NRC Staff for 12 what might be a valuable training document or whatever.
13 But as we sit here now without further p()
14 explanation, we don't know how her concedingly learned 15 testimony is useful to us when we look at the Commission 16 policy requirements and the limitations of what is required 17 for the handling of radiologically exposed individuals.
18 We note that there is no quantitative standards 19 set out in her testimony,.and she doesn't purport to have 20 that type of expertise.
She is a physician and she is 21 giving to emergency responders perhaps valuable information, 22 but not to the adjudicators.
We just don't know how to use 23 it.
24 25 (U")
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.MS.
GREER:
If I may address that.
2 I think the way to look at Dr. Leaning's testimony l'
3 is really as a road map on how to actually go about 4
implementing the proposed guidance set forth in the NRC 5
memorandum that we reviewed yesterday.
6 If you will look at that center column on the 7
second.page you will see that the NRC sets forth four 8
requirements.that they are proposing that a local planning 9
effort has to do, at a minimal level.
10 Now to some extent, Dr. Leaning's testimony may go'
-11 beyond that and set forth what is not only minimal but 12 optimum.
13 However, I believe it also encompasses what one n
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14 should procedurally do as a planning mechanism for 15 implementing those four things.
16 For instance, just to take a look at the first 17 requirement that the NRC seems to be setting forth.
That 18 the local planning effort include compiling.
19 Number one:
"A list of local or regional medical 20 treatment facilities and transportation providers 21 appropriately annotated to show their capacities, special 22 capabilities," and I think that's key here, "or other unique 23 characteristics."
24 JUDGE SMITH:
Yes.
Let's take that a point at a j
l 25 time.
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1 As I: understand it,-that requirement requires that-t 2-those capabilities.be whatever they'are.
3 MS. GREER:
That's true.
i]
4 JUDGE ~ SMITH:
And.no-special~ additions.
y 5
- MS..GREER:
That's correct.
6-JUDGE' SMITH:
Except for FEMA says it ought to be 1
7 ~
an accredited hospital or a bona fide federal hospital ~..
8 MS. ' GREE"t:
Right.
9 JUDGE SMITH:
Now, how does that'--
10 MS. GREER:
How does that tie.in?
11-JUDGE SMITH:
Yes.
12-What can we learn?
What finding can we make?
13 MS. GREER:
Let's look at it in the context of 14 what we'have of the SPMC.
In Appendix M of the SPMC I 15 believe that there are approximately half a' dozen ~ hospitals 16 listed.
17 The only thing provided to the ORO members who are-
.18 going to then.be asked to implement the SPMC in the event of' 19 an emergency, under that list in Appendix M are the two MS-1 20~
hospitals who are specifically designed as such.
Primarily 12 1 MS-1 and backup MS-1 plus the host hospitals.
22 All the information that is going to be available, 23 that we know of that's going to be available to the ORO 24.
workers at the monitoring decontamination center are in fact H25 this list.
They're not going to have any idea of the O
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capacities or capabilities of these hospitals.
l2 I think that is, in many ways, very important here, 3
because --
l 4
JUDGE SMITH:
Do we need.Dr. Leaning to tell us l
5-that?
And she doesn't even tell us that.
6 MS. GREER:
No.
7 What she says in-her testimony,.though, there 8
should be -.when you list your hospitals -- when you 9
compile yo2r list of hospitals you should be able to in fact 10-break'out those who are capable in your local area of 11 treating the radiologically contaminated.
12 And in fact, in this case there is no indication.
13
.And particularly this is -- what we view to be a problem,
(
14-
-because their primary MS-1, their primary hospital they are-15 sending to from the decontamination center appears to have 16 absolutely no capacity to treat the radiologically injured.
17 As a matter of planning, that appears to be a 18 fault.
And certainly the ORO worker on the day of an 19 emergency is not going to have any idea if somebody 20 comes in --
21 JUDGE SMITH:
How am I going to sit back there in 22 my office and take Dr. Leaning's testimony and arrive at the f
23 conclusion that you have just taken me to?
How am I going 24 to do that?
25 MS. GREER:
To some extent, that is the burden
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1 that~is carried by the Mass AG's office to in fact in our j
2 proposed findings be able to tie specific language in Dr.
3 Leaning's testimony both to the lack of provision in the 4
SPMC and tie that directly to the requirements.
5 JUDGE SMITH:
Could I characterize it this way, 6
you will take the requirements, show what they are, as they 7
are pretty well agreed upon.
)
j 8
MS. GREER: 1Right.
9 JUDGE SMITH:
Take the plan and show that the plan 10 does not-meet the requirements by the terms of the plan 11 itself.
Take Dr. Leaning's testimony and show what the 12 technical significance of that failure is.
13 MS. GREER:
What it should be?
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14 JUDGE SMITH:
Yes.
15 You're going to use her testimony to show -- in 16 the first place you're going to show that the plan fails to 17 meet the regulatory requirements by the terms of the plan 18 itself.
Because Dr. Leaning doesn't even talk about the 19 plan.
20 So you're going to use the plan itself to show 21 that it does not meet the requirements.
22 Is that point correct?
23 MS. GREER:
Actually, I would propose -- if I was 24 actually writing the proposed findings I would do it in the 25 other L.
(O
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1 JUDGE SMITH:
And that's where we get hung up.
]
2 Because Dr. Leaning does not even reveal the fact that she J
3 is aware of a plan or that she has ever read the regulatory 4
requirements.
We can't even discern that from her l
5 testimony.
6 All we know is, as a physician trained in the area 7
she thinks should be achieved.
So we need a better link to 8
the law and the plan than Dr. Leaning offers.
i 9
MS. GREER:
If I may refer you to particular 10 places in her testimony where I think that you will get a 11 better view of --
12 JUDGE SMITH:
But I still think that you should be a'le to answer my question as to the nexuses between the 13 b
14 plan, requirement, and Dr. -- we have a triangle here.
The 15 nexuses between the points of this triangle.
16 MS. GREER:
I think that her testimony sets forth 17 what in fact is needed to implement these four regs.
These 18 four requirements.
19 And if I may direct your attention particularly to 20
-- for instance, again starting with number one:
"A list of 21 local or regional medical treatment facilities and 22 transportation providers appropriately annotated to show 23 their capabilities."
J 24 Referring your attention over to page 13 in the 25 middle of the page there she spec 4fically says: "The
/~T L) 1
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referral sites are designated hospitals throughout the state i
1
'2 as well as throughout the nation /" this is referringLback to 3
earlier testimony.
If in-fact the state, once you look at 4
the state and local capabilities'are not able to handle the 5.
volume,.then.you have to:look-beyond state capacity.
'6 That is actually also indicated in the FEMA-L 7-memorandum MS-1.
"To have the. capacity to care for people 8-with radiation' exposure."
That goes directly to.that 9
requirement. 'We view that as going directly to that
~
10
-requirement.
11 In the. middle paragraph, page 13. 'She says, what-12' you-have to do_is go around, call up, look up, however, find
~
13
-- find your-hospitals that can handle different classes'of
'14 patients.
And have them listed so that when you have 15 somebody come.in --
16 JUDGE SMITH:
That adds nothing to my knowledge of 17 what the plan has to require'.
All I have to do is look at
'18 the decision in the regulation and I know that.
I didn't 19 need Dr. Leaning to tell me that paragraph.
20 MS. GREER:
I'm not sure that does.
That one in.
21 fact-spells out that.
In fact one of the capacities that 22 you want to have on your list is the capacity of a hospital l
23 to handle people with radiation treatment.
That require 24 radiation treatment.
25 I see that nowhere in that listing there.
I l
O Heritage Reporting Corporation (202) 628-4888
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1 merely says " capabilities."
2 MS. DOUGHTY:
Your Honor.
- 1 3
JUDGE SMITH:
I'm just not following your 4
. argument.
5
'MS.
DOUGHTY:
Your Honor, I found it very helpful 6
to look at the MS-1 document that was provided yesterday, i
7 And it's broken down into the NUREG requirements.. And what 8
I did yesterday was try'to go through and match the sections i
9 of Ms. Leaning's testimony that are relevant.
10 JUDGE SMITH:
We can do that, too.
I can go 11 through Dr. Leaning's testimony and pick up snippets of it 12 that talk about the regulatory requirements.
13 But we're being offered here is some 24 -- lots of Os i
14 pages, I don't know.
20 pages, 19 pages of a general 15 interesting discussion of the problem.
But we have to take 16 snippets of it out and match it to the regulation.
And then 17 even thoaa snippets don't tell us anything that the 6
18 regulation doesn't already tell us.
19 MS. DOUGHTY:
I agree that it is a general 20 document in many respects.
I characterized it to myself as 21 a diamond in the rough.
And there are certain sections that 22 are pretty general.
i l
23 JUDGE SMITH:
That's the problem.
24 MS. DOUGHTY:
But I do think there is specific 25 evidentiary things that can help you evaluate.
)
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The evaluation criterion set forth in this A.3 and 1
2 in the --
3 JUDGE SMITH:
Ms. Doughty, yesterday we had all 4
these arguments and pretty soon we start down the trail of 5
one point, and before we get it resolved another point comes 6
on the table for us to decide.
Before we get that resolved 7
another one comes up.
And it is not too long before where I 4
8 have information overload and I don't know where I am.
9 I never did trace out satisfactorily the point I 10 was taking up with Ms. Greer.
I never did get that 11 satisfied.
And while that's dangling you come up with a new 12 point and I can't handle that.
That's just impossible.
13 AS. DOUGHTY:
I'll try to stand back and let Ms.
(%
k.J 14 Greer make her point.
But I would like the opportunity --
l 15 JUDGE SMITH:
Let me just simply say that I do not 16 understand your point nor have you answered my concern with 17 respect to that middle paragraph on page 13.
It doesn't 18 tell me one thing that the regulation doesn't tell me.
19 MS. GREER:
I'll tell you, you've got four 20 sentences there in the regulation.
You have in fact here in 21 Dr. Leaning's testimony approximately 18 pages --
22 JUDGE SMITH:
We're not going to take 18 pages.
23 MS. GREER:
What I'm telling you, it's spelling 24 out what we believe those four requirements mandate in terms 25 of implementing those procedures.
Those four requirements i-m Heritage Reporting Corporation (202) 628-4888
19879 r~}
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1 do not mention what you actually have to do in order to 2
implement the requirements.
They are a general outlino.
3 JUDGE SMITH:
You have to point out to us where it 4
fits in and so far you're zero to zero.
5 MS. GREER:
If you will look further down page 13 6
to the bottom paragraph, again Dr. Leaning says:
"All 7
medical personnel involved in delivering this emergency 8
care," and again, she is talking about the emergency care 9
relative to the radiologically injured, "must be trained in 10 how to perform the roles and drills and must be held 11 periodically to ensure that response is maintained in a high 12 level of confidence."
And that includes --
13 JUDGE SMITH:
Now, I want you to go back, (o_)
14 I postulated to you that you were going to use the 15 following sequence of logic.
You were going to begin with 16 the regulation, go to the plan, assert from the terms of the 17 plan that the regulation is not satisfied, then use Dr.
18 Leaning's testimony to demonstrate the technical 19 significance of that failure, if any.
You rejected that 20 postulation.
21 MS. GREER:
Yes, I did.
22 JUDGE SMITH:
And then you said, you don't like 23 that approach.
And I thought I was throwing you a lifeline 24 there, but you didn't like that.
25 Now what you're doing, I have no idea.
You seem lh U
Heritage Reporting Corporation (202) 628-4888 m__~___ _ _ _ _ _ _ _ - -
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1 to be using Dr. Leaning's testimony to directly challenge 2
the meeting of the regulations or something.
I don't know
+
3 what you're doing.
4 But the only logical use of Dr. Leaning' s 5
testimony, which I could envision, you have rejected.
Now 6
you're doing something -
you're off the scale for me right 7
now.
8 MS. GREER:
When I said I would go the other "L,"
9 let me tell you what I meant.
Rather than going from the 10 requirements to the plan and then to Dr. Leaning's 11 testimony, what I would do is look at the requirements and 12 say, well, what can you do now?
How do you implement these 13 requirements?
For that I would look to Dr. Leaning's
/^())
14 testimony.
Then knowing what is required as to how to 15 implement the requirements through Dr. Leaning's testimony, 16 I would then look to the SPMC and say, does the SPMC in fact 17 do this?
18 JUDGE SMITH:
In the two examples you have given 19 you have done nothing except point us back to the 20 regulation.'
21 MS. GREER:
Let me tell you what I would do.
22 JUDGE SMITH:
And then if you go beyond the l
23 regulation, that's where you have trouble.
24 MS. GREER:
Let me tell you how I would do it in 25 making proposed findings on the two examples.
Let's take Heritage Reporting Corporation (202) 628-4838
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19881 il the second.one I just said.
- 2
.The requirements are that -- looking'at the j
1
. memorandum _down in-number three.
3-4 JUDGE. COLE:
Now which memorandum are you talking 5
about?:
6 MS. GREER:
I'm talking about this'one.
7 JUDGE COLE:
That's the policy statement.
8-MS. GREER:
Policy. statement.
9
- A provision for making available.necessary 10
- training for emergency' response personnel to-identify, 11 transport, and provide emergency first aid to severely 12 exposed individuals."
13 If you look at.her testimony down at the end of
}
14 page 13 she'says: "All medical personnel; involved in 15 delivering this emergency medical' care must be trained in.
16.
how to perform their roles,. drills and must be held 17
. periodically to. ensure that response is made at a high' level 18 of competence."
19 JUDGE SMITH:-
I bet you Mr. Trout would stipulate 20 to that.
21-MS..GREER:
Not in terms of -- and then you look 22
- at-the SPMC and see whether there-is any provision in the 23 SPMC for any kind of drill or training even to handle the 24--
radiologically injured and you will --
25' JUDGE SMITH:
And we can bypass Dr. Leaning O
Heritage Reporting Corporation (202) 628-4888
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1 1
entirely and arrive at the same result.
}
2 MS. GREER:
You may be able to do that on your 3
own.
But I would certainly --
I 4
JUDGE SMITH:
We don't need Dr. Leaning to tell us 5
that the regulation must be enforced.
Dr. Leaning can say, 6
it must be enforced or not be enforced.
We take the 7
regulation as if it's the constitution of the United States.
8 It must be enforced..You must have training.
9 MS. GREER:
What I'm hearing you say is that Dr.
10 Leaning is merely a restatement of the regulation.
11 JUDGE SMITH:
In the instances that you have 12 pointed out so far.
13 MS. GREER:
And is in fact redundant.
I' don't 14 think that mere redundancy in setting forth what the 15 regulations require is a reason for excluding testimony.
16 JUDGE SMITH:
Would you explain to me why you want 17 that testimony in?
What litigative value does it give to 18 you when all you need is to hold up the regulation and you 19 have won the point?
20 MS. GREER:
Because I'm not clear that --
21 JUDGE SMITH:
It only makes sense if you have 22 another purpose in mind for Dr. Leaning's testimony.
I'm 23 going to either smoke that out, you know, clear it out or 24 you're not going to get it in.
25 MS. GREER:
I would point out to the Board that l
Heritage Reporting Corporation i
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the grounds that have been put'forth by the Applicants for-l' q
o 2
excluding this testimony is -- the first one we handled 3
yesterday and that at this point has been rejected.
4 And second, that in fact it has no relevance to O.
5 the SPMC.- I think in fact we have come forward and 6
demonstrated that in fact it does have relevance to the 7
proceeding here at hand and how we can go about using Dr.
l]
8
. Leaning's testimony --
9 JUDGE SMITH:
Does all of it have relevance?-
10 MS. GREER:
The only'two things we have in fact' 11 gone through and I have identified three portions.. Three 12 specific sentences.in the testimony that appears to go beyond the requirements of the policy. statement and was 13 14 required under the FEMA' guidance memorandum.
15 If you would like I will point those three areas 16 out to you.
And certainly if.the Applicants have spotted 17 other things that appear to go to long-term care I'm sure 18 they're quite capable of pointing them out to you as well.
I 19
' JUDGE SMITH:
Let's hear from the Applicants.
20 So far if those items of the testimony are taken-21 out, then what we have left is perhaps relevant but useless 22 testimony and harmless, perhaps, I don't know.
I'm trying 23 to figure out just exactly why you're so intent in getting 24 redundancy in.
There has to be some reason that you're not 25 articulating.
o Heritage Reporting Corporation (202) 628-4888
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s 1-JUDGE. SMITH:
Do you want to wind up your i
2 arguments'and'then we'll hear from Applicants?
3 MS. GREER:
Yes.
I i
4.
In.our view, Dr.' Leaning's testimony is -- what 5
I'm hearing:you say.is that you view Dr. Leaning's testimony f
6 as being redundant and you would be able to look as easily 7
from the regulations to the SPMC.
4 8
We. don't believe that to be true. :We believe-that 9-
.Dr.
Leaning's testimony, in fact, spells out in fairly 10-explicit terms what is required in terms.of implementing 4
11 those four requirements.
12
'And in terms of that, she goes through and tells.
13 exactly how you are going to have personnel at the reception 14.
- centers to do a triage.
Right now what we have in the SPMC 15 Lis we have personnel there, but it's not at all evident that 16 those personnel have training and are capable of in fact Ic.
17 accessing the level of injury that people have l
18-radiologically suffered in order to then take appropriate 19 action.
20 She then goes on in her testimony and says you're 21 going to have a list of hospitals, both in state and out of 22 state if in fact you haven't got enough locally available to R
23 handle the treatment.
Again, we viewed that as lacking in 24 the SPMC.- That is, again, not spelled out per se in the 25 policy statement.
Heritage Reporting Corporation (202) 628-4888 a
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1 Dr. Leaning then goes on and says you're going.to l
2 have to have transportation available that is capable of 4
3 handling these people.
And to the extent that you have not 4
identified enough local hospitals to be able to handle it, 5
you're going to have to have transportation available that 6
can then get you to wherever you have to go.
7 JUDGE SMITH:
Exactly.
That's what the 8
regulations says.
9 MS. GREER:
Again, we view the SPMC as lacking in 10 this.
11 In terms of actually thinking through the problem, 12 I think that Dr. Leaning's testimony about how to go about 13 setting up a triage system, an emergency response system for p
\\
14 those who have suffered radiological injury as a result of 15 an emergency at any nuclear plant, or more particularly, at 16 this one, at the Seabrook facility if it goes on line is in 17 fact a road map of how to go about what you have to do in 18 order to set up an emergency response system for the 19 radiologically injured.
20 I think that four sentences in the middle of the 21 policy statement is in no way any kind of road map.
It 22 certainly doesn't go to the kind of capability that the 23 personnel doing the initial triage has to do.
I think Dr.
24 Leaning, in the first 10 pages of her testimony, goes 25 through that in great detail as to what kind of assessments j
(
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you are going to have to make, what kind of advanced' 2
planning you are going to have to do, how you are going to
+
i 3
have to go out to the local hospitals that are going to be 4
receiving these people, talk to them ahead of time.
5 For instance, in the SPMC there are listed 6
hospitals as potential reception hospitals who ORO has never 7
even talked to.
Dr. Leaning says you are going to have to 8
talk to them ahead of time, discuss with them, have ' hem do 9
an assessment of their capacity to in fact off load their-10 own patients, which of their patients they can'off load if 11 in fact an emergency happens at Seabrook.
That has not been 12 done.
That is no where in here.
13 I think it's -- you may think that everything here
()
14 you can get straight from the -- everything that's required-15 here you can assess merely by looking at the plan.
I would 16 submit --
17 JUDGE SMITH:
Well, the examples you gave were 18 perhaps unfortunate examples.
Now you want to go back and 19 give some more examples of where the policy guidance, where 20 the plan does not achieve the objectives of the policy 21 guidance.
That's what you are trying to say, I think.
The 22 plan is not complete enough to doesn't achieve the 23 objectives of the policy guide.
24 MS. GREER:
And we think Dr. Leaning's testimony 25 sets forth what is required by the policy guidance.
()
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1 JUDGE SMITH:
All right.
I 2
Ms. Doughty.
o
)
3 MS. DOUGHTY:
I would just amplify on what Ms.
4 Greer was saying.
I think there is some specific evidence f
a 5
offered in Ms. Leaning's testimony.
For example, on page.8 I
1 6
there is described in the bottom paragraph what is required l
7 in a tertiary care setting.
8 JUDGE SMITH:
Now when you make your arguments 9
understand that we do not wish to accept 18 pages of 10 testimony, some of which is relevant and some of which is-11 not relevant, because parts of it are relevant unless there 12 is some overriding compelling purpose.
13 MS. DOUGHTY:. The. guidance memorandum talks about O(-)
14 the necessity for having written agreements with the 15 providers of medical care that provide adequate technical 16 information and treatment protocols so that planners know 17 what services are going to actually'be at the hospital to 18 which they make a referral.
And they ask for these -- the 19 guidance asks for treatment protocols and treatment 20 capabilities.
21 And I think that this amplifies on that so that 22 you have evidence in the record of what kinds of care will 23 be needed so you can evaluate the letters of agreement in 24 the plan to see if they do indeed provide the requisite 25 treatment protocols and treatment capability statements.
(~)
Heritage Reporting Corporation (202) 628-4888 m---_-_
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-And'in ad'dition, Planning Standard L-1 also says 1.
2, that the lists should be annotated-to' indicate ambulatory,
~
3-nonambulatory capacity, special radiological capabilities.,
'4-
- The letters of agreement that'I reviewed 1 don't provide.that.
5-information. HMs. Leaning's' testimony'provides further U
'[
H
'6~
amplification'of what's necessary11n terms of radiological.
17 capability so that the' Board could. view the evidence as to 8-the. letters of: agreement and know whether they.. provide
.9 enough specificity.
10 JUDGE SMITH:
See, what-you're saying is logical 11; enough, but this is-the same problem that comessup.over and 12 over again.
You'come up with a shotgun and we resist'the
'13 shotgun.
And then.you say, well, some of these-pellets, you-14 know, are pretty' good, and then,it's not our-job to clean up 15 testimony land extract from it the portions that are useful' 16 and relevant.
It's not.
I mean, you shotgun and you take l,
17 the risks-of shotgunning.
18
'MS.
DOUGHTY:
Okay, if-I --
19 JUDGE SMITH:
And'just take-that advice in.the 20 future.
21 MS. GREERi If I may,' though, it seems to me that 22 that is then our burden in terms of submitting to you
- 23 proposed' findings.
24 JUDGE SMITH:
But you're not going to get received 25' into evidence nonrelevant information, and that is the O
Heritage Reporting Corporation (202) 628-4888
19889
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problem.
The testimony is saturated with nonrelevant 4,
2 information.
3 MS. GREER:
Okay.
If I may.
4 JUDGE SMITH:
You've argued'enough.
Let's hear 5
from the Applicants now.
We've had that exchange before.
6 MR. TROUT:
Your Honor, I have three problems with 7
the testimony.
I'll try to be brief on each of them.
8 The first problem is that it's the wrong 9
yardstick, or if you prefer, the wrong road map.
10 The second problem I have is that there is 11 absolutely no nexus.
Neither the regs, the guidance, the 12 SPMC,.Seabrook Station, Massachusetts or anything else 13 that's relevant to this case.
p~).
(-
14 The third problem is that I hear the Interveners 15 arguing that they are going to finally give us the factual 16 basis for their contention in their proposed finding after c
17 the evidence is closed and after Applicants have filed their 18 proposed findings.
19 Those are my three problems.
The first problem, 20 Ms. Greer says there are three sentences in those 19 pages 21 that go beyond the -- well, let's back up a step.
22 She says that this testimony was submitted to fill 23 out those four criteria listed in the policy statement.
24 That's a little difficult to believe since the policy 1.
25 statement is never referenced in the testimony.
But let's
()
Heritage Reporting Corporation (202) 628-4888 1
19890 0 E 1
, accept that.- Let's accept for the. moment that this.is'
?
2
. supposed to be the road map to filling out those.four-3 criteria.
c
-4
'The problem, the simple-and complete problem with-
=i 5
that explanation,.that rationale, is that we've got a road f
'6 map.
.It's the MS-1 guidance promulgated by FEMA and the NRC.
7
'in November of 1986.
That's the. road map.
4
.8 This is the yardstick,:Your. Honor, that all plans' 9
are supposed to.be measured against.
This is the yardstick 10 that_this Board is supposed to' apply to the.SPMC.
This is 11 the yardstick that the SPMC has been measured against by 12-FEMA and'found adequate on every single count.
13 JUDGE SMITH:
Can't Dr. Leaning say, well, that.
14 road map provided by FEMA is inadequate or is incomplete?
15 MR. TROUT:
In other words, she's challenging the 16 regulations and the guidance.
17 JUDGE SMITH:
Yes, right.
She can challenge the 18 guidance.
19 MR.' TROUT:
Well, Your Honor, that gets us into 20 the.second problem which is the lack of a nexus.
21 JUDGE SMITH:
All right, now, I want to take this 22 point up too and maybe you can address it.
23 You've made the argument several times that the 24 testimony is generic and not specific to the plan, or 25 specific to Seabrook.
Now sometimes we have held, to your Heritage Reporting Corporation (202) 628-4888 u_. - -_
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19891 4
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S
.'1 benefit, the generic information is not irrelevant simply l
4 2
because it has universal application.
3 MR. TROUT:
It's still, Your Honor, generic:---
4-JUDGE ~ SMITH:
The laws of nature is the example we
'5 used are the same in every nuclear power plant in the E'
6 country.
Juid just because an analysis is made on the -
~~
7 freezing temperature of water in Iowa does not mean that i-8 that.same analysis.should not be made in New Hampshire.
'So1 9
that doesn't get.you very far.
10 Now, I do think we have a problem as I've stated, 11.
though.
It is not structured and we need an interim bridge 12 which counsel disavows, interim bridge before we can 13 understand the significance of the Dr. Leaning's testimony.
11 4.
MR. TROUT:
Your Honor, you have a yardstick --
.15 JUDGE SMITH:
The difficulty is -- I'm sorry to 16 interrupt.
The difficulty is what they say'makes sense, but 17 the testimony was not designed that way.
What they say 18 about the testimony is logical.
It fits in, fits into the; 19 regulation, but the testimony doesn't comport with what they 20 wish it says.
The testimony is unstructured, general and 21 does not help the Board in any way'to make a finding, even 22' if we are so inclined and we are, to improve the plan.
We 23 don't know how to take her testimony and improve things.
24 And you haven't yet told us now.
You're waiting 25 for your proposed findings.
Well, Dr. Leaning is here ready Beritage Reporting Corporation (202) 628-4888 l
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1 to testify.
You had an opportunity and you may still have 2
an opportunity if you can clean this up and agree with l
3 applicants, clean this up and come up with information that 4.
we can use that shows a specific shortfall from the policy l
5 statement and from FEMA's guidance.
But you haven't done 6
that.
You've just offered a general, unfocused, unuseful 7
piece of information so far.
8 MS. GREER:
Okay.
I have --
9 JUDGE SMITH:
Now, I don't know what to do.
4 '
10 MS. GREER:
Okay.
I have a suggestion to propose 11 that may -- what I'm hearing the Board say is that you do 12 believe that Dr. Leaning does have relevant information.
13 JUDGE SMITH:
No, you say she does.
rm
(_)
14 MS. GREER:
Okay.
Well, all right.
15 I'm hearing the Board say that they are willing to 16 hear relevant, useful information that Dr. Leaning may have.
17 JUDGE SMITH:
Unless the Applicants say it's just 18 too late to clean it up.
I don't know.
19 MS. GREER:
But you don't like it in the form that 20 it has been presented.
21 JUDGE SMITH:
It's not useful to us.
22 MS. GREER:
Okay.
And to the extent that you are 23 willing to accept the testimony, you would like it in a more 24 useful form.
~
25 All right, then I would suggest the following as a Heritage Reporting Corporation l
(202) 628-4888 1
19893 7
1 proposed solution to this.
That we withdraw this proposed 2
testimony, that we re-edit it, tie it in specifically to the 3
requirements as set forth in the policy statement as to some 4
extent as has been set out in the guidance memorandum, and 5
tie it specifically to how.we view the SPMC to be lacking 6
and set forth in specific terms that this is what you should 7
do as a planning device.
8 Would that kind of repackaging --
9 JUDGE SMITH:
Well, the difficulty is that Dr.
10 Leaning is scheduled to testify today, and you don't even 11 suggest the obvious.
And that is, that Dr. Leaning in fact 12 has useful advice on how to improve, within the regulations, 13 the treatment and care and transportation of radiologically k/
14 exposed people go directly to the planners.
Sit down with 15 them.
16 MS. GREER:
I'm sorry.
The real problem that we 17 would have with that is I realize that this Board -- one of 18 the functions and purposes of this hearing from the 19 perspective of this Board is to improve the plan.
And we 20 don't deny that that is a purpose for this kind of hearing 21 format.
But one of the problems that we have as the 22 Commonwealth of Massachusetts is that we have adopted a 23 position where we are not going to be --
24 JUDGE SMITH:
Well, that's too bad.
You have an 25 expert back there who can help you say, but you' re going to r3
\\,.,]
Heritage Reporting Corporation (202) 628-4888 i
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take an attitude like that.
Then you're asking us to stop l'
2 the hearing, go back, reformulate your testimony and try 3
again.
You can't have everything.
4~
MS. GREER:
I'm sorry, I thought I heard you say 5
in the past in this proceeding that we have a right not to 6'
engage in planning.
7 (Pause. )
8 JUDGE SMITH:
You do, but that's your answer then?
9 You are not going to engage in planning.
You are not going 10 to.make Dr. Leaning available for any discussion with the i
11 Applicants.
You are going to come back in with testimony 12 and you are going to litigate improvements that Dr. Leaning 13 might have through a Board, through that process, and not
(
14 make.directly available the benefit of her wisdom and 15 judgment on it.
16 MS. GREER:
To the extent that the Applicants 17 wanted to go out and retain Dr. Leaning to do planning for 18 them, they could have done that.
They have chosen not to do 19 that.
20 JUDGE SMITH:
All right.
21 MS. GREER:
We haven't sat -- we have instead come 22 forward here and we have offered her testimony as showing 23 what they have not done.
That is -- that's what we are here 24 for.
We are not here to engage in planning.
They can plan.
25 JUDGE SMITH:
And you had every opportunity and Heritage Reporting Corporation (202) 628-4888 1
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19895-
~.
'l you failed.. You came up with an unacceptable piece of.
2 testimony, and you failed.
Now I was trying to save
.3' something out of it for,you.
And you come up with this,.
4'
'well, we don't plan.
5 All right, if that is your position, all right.
6
'We.can't save it-for you then.
We'11 read it if on our own 1
'l motion we believe something could be'made useful out of it.
~
y u-8
'We'll read it and see what happens, and take it up with the 9
parties.
But you can't have-it both ways.
You can't have 10 everything.
11 You did not do a workman-like job in preparing 12 this testimony'and working with your witness to have it
.13 comport with the regulations..Now you're stuck with it.
I 14 offered you an opportunity to salve ~Dr. Leaning's work.
You 15 have rejected it on litigative principles.
That's your 16 privilege and you have also the privilege of. sticking ~with 17
.the consequences.
i 18 (The Board confers. ).
19 JUDGE SMITH:
The Board's view is that the 20-testimony as it is presently constituted is not focused on 21 the regulations, is not focused on the plan, is not useful.
22 Your tactic of waiting for proposed findings to come.in to 23; show how the plan is deficient is not acceptable.
It does I
24 not give the Board or the parties an opportunity to explore 25 the value of those ideas.
We don't accept your litigation l
Heritage Reporting Corporation f
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1 strategy, particularly in an area like this.
t 2-The objections to the testimony are sustained.
- L MS. GREER:
Just to clarify for the record, I 4
believe that we in fact had previously offered this 5
testimony yesterday.
It had been rejected.
I don't believe 6-that, just to clarify for the record what status it is at.
'/ '
JUDGE SMITH:
It is still rejected and we said we 8
would reconsider the rejected nature of it after we hear all 9
these arguments.
10' MS. GREER:
Fine.
11 JUDGE SMITH:
The Board will, nevertheless, ask 12 counsel for FEMA and counsel.for the NRC Staff to bring Dr.
13 Leaning's views to the attention of the appropriate
()
14 officials for whatever value it may have in your agencies.
15 MS. CHAN:
Yes, the Staff agrees, and we will 16 bring this piece of testimony to the attention of Frank 17 Congel, who I believe is the contact with FEMA on the 18 formulation of guidance memoranda on medical services.
19 MR. FLYNN:
Yes, Your Honor, and I will bring this 20 to the attention of the associate director for state and 21 local programs.
22 JUDGE SMITH:
Dr. Leaning, thank you for coming.
23 MS. GREER:
Can we have just a short five-minute 24 recess at this point?
25 JUDGE SMITH:
Sure.
l
)
Heritage Reporting Corporation (202) 628-4888 l
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t F.
-19897
./m k_)
1 MS. GREER:
Thank you.
2 (Whereupon, a recess was taken.)
j 3
JQDGE SMITH:
Ready to.take up the objections to 4
Sikich, the Sikich testimony on special populations.
5 MS. GREER:
There has been a motion in limine r
6 filed.
I think that's what we are here to do now.
7 JUDGE SMITH:
Yes, right.
And you were to have 8
reviewed the motion and the Board is supposed to be informed 9
as to.what matters still remain under dispute.
10 MS. GREER:
Okay.
The parties have agreed that 11 and we are in fact planning on the edited or amended version 12 of the Sikich testimony on special populations that we are 13 to be submitting, that we were in fact going to be~ deleting
()
14 from that testimony various portions of it relating to the 15 distribution of KI.
16 The Applicants have identified, at the top of page 17 3 of their motion in limine, two references in his testimony 18 to distribution of KI.
We would have no objection -- in 19 fact, we were planning to remove that portion anyway.
And 20 so that portion of the motion in limine hus been resolved.
21 JUDGE SMITH:
How about the rest of it?
22 MS. GREER:
With respect to the rest of the motion 23 in limine, we do have problems with that.
24 JUDGE SMITH:
All of it.
25 MS. GREER:
We do.
Heritage Reporting Corporation (202) 628-4888 i
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1 JUDGE SMITH:
There is no aspect of it that you
[
2 agree to, the rest of it?
3 MS. GREER:
Other than that first portion, no.
4 JUDGE SMITH:
All right, let's start to work then.
5 MS. GREER:
Okay.
I take it the Applicants are 6
going to let the motion speak for itself, so I should be r
7 addressing the portions as we go along?
8 JUDGE SMITH:
Yes.
Page 17 is the first one.
9 MS. GREER:
Okay.
This paragraph points out that 10 because there is no confirmation mechanism, that the only --
11 the only way to, in fact, confirm is by call-back call.
12 That is going into the larger piece of testimony that Mr.
13 Sikich is talking about at this point, that there will be an
('%
(-)
14 untimely notification of the schools and day care centers 15 because of how long it will take the liaisons to get down 16 their phone list.
17 And he's saying one of the problems that you have 18 here is that you're going to -- he goes through a series of 19 things that you are going to have problems with in terms of 20 getting through the list.
And he points out that one thing 21 you are going to have is tied up phone lines and an 22 additional burden on those phone lines is going to be caused 23 by confirmation call-back calls.
And that, I believe, is 24 specifically referenced in our Contention 45, Basis D, 4
25 pointing to you the language reads as follows of the entire O
V Heritage Reporting Corporation (202) 628-4888
I --
l 19899
'v
'1.
Basis D.
- b 2-
"If the school liaison; calls a local EOC and
?E 3
learns'that she will be admitted, she goes there."
Then 4
procedural sites,1 procedure implementing. procedure sites.
!5 "There'is~no-assurance, however,'that upon her admittance to 6:
a local EOC she will'have timely access to a telephone ~to l
7' perform her' functions or that," and this is the significant 8
part, "even if a' phone is available~to her in a timely.
R 9
fashion, the phone lines will now be-overloaded and 10
- unavailable."
11 This is simply pointing.out one other way in 12 which,~given the procedures of the'SPMC, phone lines.could 13 be unavailable or receipt of phone calls.will be 14 unavailable.
15 JUDGE SMITH:
Confirmation call-backs are a load.
"16 MS. GREER:
What?
17 JUDGE. SMITH:
Confirmation call-backs are a load.
18 MS. GREER:
Yes.
'19 JUDGE SMITH:
That's the significance of that.
20 MS. GREER:
Yes.
21 MR. TROUT:
Your Honor, may I ask a question?
22 Is that the basis to which this testimony goes, 23 45-D?
L24 MS. GREER:
Well, it also goes to -- there is also t
25 mention there of special facilities we can go over.
There
' (Sl l
Heritage Reporting Corporation I
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are' comparable ~ portions under the special facility.
And if' l
2 you want, I'll go cite through that.
3 MR. TROUT:.That's all right.
If that's the -- if.
11 those are the two places where that testimony comes in, then i
- 5. _
we have got a very simple. solution to this problem,.Your-6 Honor.
7 Those~ bases were withdrawn by stipulation February 8
7, 1989.
9 MS. GREER:
Only the portions of those bases going 10 to arriving at the local EOC, not to the timeliness of the 11
. phone calls.
.12 MR. TROUT:
Your Honor, I didn't bring the 13' stipulation with me this morning because I didn't -- all
)
14 right,'the Staff has it.
They were withdrawn, Your. Honor.
15 16 l,.
17 18 19 20 21-22 1
23 1
24 25 O
Heritage Reporting Corporation (202) 628-4888
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1 MS. GREER:
It was withdrawn because now the
~
4 2
proposed implementation procedures do not require going to a 4
3.
local EOC.
That was the basis upon which it_was_ withdrawn.
4 MR. TROUT:
If it's gone it's gone.
5 JUDGE SMITH:
I haven't followed your debate.
]
'~
6 What are we looking for?
7 MR.. TROUT:' We're on pages eight carrying over to 8
nine of the. February 7th stipulation, the paragraph "J"
or l
9
_section "J" entitled " Liaison Telephone Access, Contentions
'j 1
10 45 and 50."
11 I would read to the Board the second paragraph of 12 that section: "In light of these changes Mass AG agrees that 13 the issues, no limitation, raised in JI Contention 45, Bases l,/
14 C and D; JI Contention 50, Bases E and F."
That's the other 15 liaison contention that Ms. Greer was referring to.
"Other 16 than the issue of telephone overload which is also raised in 17 JI contention 30."
In other words, only the JI-30 issue is 18 left, "have been resolved.
Accordingly,_ Mass AG withdraws 19 Bases C and D of JI-45 and Bases E and F of JI-50."
-20 So there is the JI-30 issue left.
But as far as 21 JI-45 is concerned and JI-50 for that matter, it's gone.
22 MS. GREER:
Okay.
In terms of going to bases, 23 again, as I said the telephone issue remained in and it has 24 been cited over as under basis 30 but it --
25 JUDGE SMITH:
Do you withdraw your previous Heritage Reporting Corporation (202) 628-4888
i n.
19902' q
M' 1
arguments?
2 MS.'GREER:
In fact, when I went through this 3
' thing yesterday I was looking at that' basis, because in fact 4
'I knew that the telephone issue'was still in.
And that's 5
where I saw'it under 45.
6 But by stipulation we have referenced it over to L,.
7 basis 30 and I think that speaks'for itself.
8' JUDGE SMITH:
You're modifying your argument now.
'9 MS. GREER:
I'm perfectly willing to modify;my 10 argument.
11 JUDGE SMITH:
I don't' care if.you're.willing to 12
' modify it.
It is so hard to find out what you're actually 13 saying.
)
14 Were you incorrect before?
I-15 MS. GREER:
To the --
16 JUDGE SMITH:
Were you, you or no?
Were you 17 incorrect before?
Do we have to rule or do you maintain 18-
- your previous argument?
19 MS. GREER:
I was incorrect in terms of citing to 20 that basis as the element under which the telephone --
21 JUDGE SMITH:
That was a mistake.
22 How did that mistake happen?
23 4dS. GREER:
Because when I was looking through the 24 Bases yesterday that was the Bases I was looking at, but in 25 fact because I was not looking at the stipulation and seeing O
Heritage Reporting Corporation (202) 628-4888 l
m; 19903 D4-d 1
'l Ethat.in fact bypatipulation.we had' referenced it over to:
2 Contention-30'.
L:
C 3
9 JUDGE SMITH:. 30, all;right.
- 4 So now you offer this paragraph'to Contention 5
JI-30.
"6' What do'you'say'to that?
7 MR. TROUT:
Well,1Your Honor, I1 wonder'whether it'
~8 fits under JI-30'either.
JI-30'is a general: telephone' 9
overload contention.
And that's an issue that Applicants-a-
10 knew that they would be litigating.
And in fact'have filed-11 testimony on and' prepared to litigate.
12-But.as Your Honor knows when we'were served'with L13 '
-these general contentions or faced with these general'
'14 contentions we asked interrogatories to try to' flesh out L
15 what the contentions meant.
~~ 16 :
I will confess to the Board that I looked at the 17 interrogatory answers under 45 when I tried to figure out 18 whether any. hint of this need for a call-back system was 19 contained in Mass AG's contentions.
20 But I would strongly suspect -- and I'm.trying to 21 find the interrogatory answers -- I would'strongly suspect E
.22 that the need for a call-back system for school principals 23 is nowhere mentioned in Mass AG's interrogatory responses 24 under JI-30.
l
.5 JUDGE SMITH:
Did you ask them to list all of the 2
7 i,;
l Heritage Reporting Corporation (202) 628-4888 I
t L
19904 k_m) 1 kinds of telephone calls that would cause an overload?
Is i
d 2
that how detailed you got?
3 MR. TROUT:
-No, Your Honor.
1 4
This is more than just a type of telephone call.
5 They're saying we need a system.
A. confirmation system.
15 JUDGE SMITH:
I know.
But this is not a 7
confirmation system contention anymore.
This is a
.8 contention saying that telephone lines are going to be 9
overloaded.
And this is an example of -- they're not --
10 (Pause).
11 JUDGE SMITH:.You're offering this sentence as
'12 proof of the fact that.telephoneLlines will be overloaded; 13 is that what that's for?
This sentence?
r~
(,%)
14 You're saying, yes?
15 MS. GREER:
Yes, I am.
I'm sorry.
16 JUDGE SMITH:
Not one of the consequences of 17 overloading, but as a contributor to overloading?
18 MS. GREER:
Correct.
19 JUDGE SMITH:
Contributor to overload.
20 You have taken one type of telephone call and you 21 said, this is going to cause overloading.
22 MS. GREER:
Contribute to the overload, yes.
23 JUDGE SMITH:
Contribute to overload.
24 I don't know what finding we can make on that.
25 MR. TROUT:
Your Honor, I'll try to solve the l
Heritage Reporting Corporation (202) 628-4888
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co 19905 i
e l
l' problem.
2
' As I read the testimony,land'I understand now the. :
purpose for which it is being offered,'the testimony is 4
being offered for the purpose of being another link in'the
'5.
. telephone overload chain.
And the argument is that the 6
principals will be called.
They won't believe.that they-7
- have got a Seabrook representative on the telephone and so.
p 8:
they're going to want to call back.
9 And it's not that we don't have a call-back 11 0 -
system, that's not what they're arguing'is.the problem e
11 because that was withdrawn.
That goes to the basis that it 12' was withdrawn.
13 It's rather that the fact that they're going to 14
- call ~back is. going to overload the telephone.
15 JUDGE SMITH:
That's right.
16 That's what she is saying.
With that limitation.
17 MR. TROUT:
We will solve the problem real simply.
'18 Applicants stipulate that'as soon as we get a 1
19 license we will give every school principal in the EPZ a 20-little code.
I have already cleared this with my client.
21 We.will give every school principal in the EPZ a little l
22 sealed envelope with a code and when the school liaison 23 calls up they will use that code so'there won't be any need a
24 for a confirmation call.
25 That's how we solved the verification problem.
As
/
O-Beritage Reporting Corporation (202) 628-4888
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19906' L.f s A
1 Lthe Board recalls,-that's how we solved the verification 2
problem with the governor. -Me.will do the same: thing.for-3
-the school: principals. 'There is not going to be any need 4'
for any. call-backs.
5 Now that is the same rational solution.
It.
6 doesn't' involve the Commonwealth in any planning prior to 7'
. licensing.
I mean, they don't have to have their school 8
principals.open the envelopes.until after we get our license 9
.and go on:line. -That's what'we will do.
10
,And the-testimony is not-needed.
11 J DGE SMITH: lor that.that is the answer to the 12 testimony, either way.
It-doesn't matter, really, you you ce t that 15-MS. GREER:
If I may.
16 My understanding is that we are litigating the 17 plan as'it exists at this time.
18 MR. TROUT:
It_just changed the plan; 19 JUDGE SMITH:
The plan is changed.
20 MS. GREER:
Well, I haven't seen it.
And I hear 21 them saying their plan --
22 JUDGE SMITH:
It will be a condition of our 23 decision if you make it.
24 MS. GREER:
If in fact the Board wants to say, 25 this cures the problem -- they're planning to do this, this Beritage Reporting Corporation l
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cures the problem.
I think that's fine.
But I think the 2
piece: of testimony still stays.
o 3
JUDGE SMITH:
For what. gain?
1 4
You want it to stay, all right.
But that's going 5
to solve the problem.
I can tell you in advance, it will 6
solve the problem.
7 MS. GREER:
If the Board wants to go that way, 8
that's fine.
But.I think it still stays.
i 9
J'JDGE SMITH:
This reminds me of something else, 10 though.
We've got to have some assurance that as these
'11 little commitments pop up during'the hearing that they will 12 end up in the decision, and they will end up in the proposed 13 findings.
That will be Applicants' responsibility.
14 MR. TROUT:
Yes, Your Honor.
15 JUDGE SMITH:
Everybody understands right now, in 16 the event that there is an oversight and that your proposed 17 findings fail to pick up one of these commitments, that's 18 okay, you are bound by it anyway even if we fail to find it.
19 That's what we are ruling right now.
20 But it is your responsibility to get them into the 21 proposed findings.
22 MR. BROCK:
Your Honor, as we understand it then, 23 that would be a condition of licensing?
Is that how the 24 Board is intending --
25 JUDGE SMITH:
That would be in the event we find a Heritage Reporting Corporation (202) 628-4888
I 19908
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\\/
1 favorable -- a decision.in favor of the Applicants.
That 2-would be one of the commitments upon which we would make
'3 such a finding.
4 The question of whether it is a condition of a 5
license we debated before.
And that'is a condition or a
~..
6 tech spec of that. type of thing is a term of art.
But it is 7
an enforceable -- it would be an enforceable condition of 8-granting approval.
9-MR. BROCK:
Thank you, Your Honor.
10 MR. TROUT:
Your Honor, if the problem is solved, 11 we want the testimony out.
If the testimony is in we' re 12 going to cross-examine on it.
That's no problem.
13 JUDGE SMITH:
Well, cross-examine then.
I see no 14 point in it.
The commitment standing without the problem,-
15 what have~you got?
Go ahead, cross-examine.
We got time.
16 We'll listen to your cross-examine.
17 (Pause) 18 JUDGE SMITH:
And he's not here.
19 The commitment is withdraw?
20 MR. TROUT:
No.
21 JUDGE SMITH:
All right.
22 What is your next one?
23 MS. GREER:
Okay.
Moving down the list we then go 24 to page 25.
The second full paragraph:
"I also see the 25 availability of the appropriate equipment to transfer o
Heritage Reporting Corporation (202) 628-4888
F 19909
(
1 patients from room transportation for evacuation or to a 2
more protective area in the hospital for sheltering being a 3
problem.
Apparently the hospitals do not have enough 4
wheelchairs to move all nonambulatory patients."
5 We would refer the Board to Contention JI-46, 6
which reads: "The SPMC fails to provide reasonable assurance 7
that adequate protective measures can and will be 8
implemented for all those persons who are patients in the i
9 two hospitals within the Massachusetts EPZ, and for those 10 who become injured during the emergency from radiation 11 contamination /exposare.
The SPMC therefore fails to," and 12-then a list of regulatory requirements.
13 I would also refer you over under Contention
()
14 JI-46 to Bases B which begins:
"The SPMC makes inadequate 15 preparations for the safe efficient evacuation of patients 16 located within the EPZ at Amesbury and Anna Jacques 17 Hospital."
18 And then going on down to the specific sentence, 19 about two-thirds of the way down that paragraph, as well 20 picking up again: "At Anna Jacques Hospital no evacuation 21 plan has been developed to provide for the evacuation and I
l 22 relocation of patients in the event of a radiological l
23 emergency."
24 Essentially what Mr. Sikich is saying is that, 25 because there has been no planning done there have not been Heritage Reporting Corporation (202) 628-4888
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1-19910 1
}
1 resources set.aside.
One of the things you' re obviously J
2 going to have to need if you're going to. transport patients 3
either to other parts of the hospital for sheltering or to 4
even get them down and into an ambulance, if they're not 5
ambulatory, is wheelchairs; and there do not appear to be 6
enough' wheelchairs in the'two hospitals.
Typically because 7
in fact the two hospitals do not have to move all their 8
patients at once by wheelchair as they would in the event of 9
a radiological emergency.
10 JUDGE SMITH:
I have a more fundamental problem, I 11 don't understand that first sentence.
12 MS. GREER:
The first sentence in which document?
13 JUDGE SMITH:
In Sikich at page 25?
)
14 MS. GREER:
"I also see the availability of 15 appropriate" -- there is a word missing.
It should say: "To 16 transfer patients from room for transportation for 17 evacuation."
18 (Pause to peruse document. )
19 JUDGE SMITH:
This refers to the internal 20 preparation for evacuation even assuming transportation is 21 available.
22 MS. GREER:
Yes.
23 JUDGE SMITH:
It seems to be covered by the 24 contention.
25 MR. TROUT:
Well, Your Honor, again, we have got a Heritage Reporting Corporation (202) 628-4888
...f ':
.19911 E
f
- 1-very..broa'd' statement.that whatever is there,Lwhich.they 4
- H 2
don't. describe, isn't good enough.
3' JUDGE; SMITH:. :Yes.
O MR. TROUT:~ So again we asked the' interrogatories..
5-JUDGE SMITH:
Right.
6 MR.' TROUT:
.The. contention doesn't'say anything 7
about, there aren't enough wheelchairs in these two 8.
hospitals.
9 JUDGE; SMITH:
Right.
10
.lGI. TROUT:
The' basis doesn't say'anything,.there 11-aren't enough wheelchairs in these two hospitals.
12 The interrogatory answers don't say anything about.
13.
there not being enough wheelchairs in these two hospitals.
,i
[14 JUDGE SMITH:
So you asked them to. explain?
l15 NR. TROUT:
That's right'.
16 JUDGE SMITH:
We don't know that.yet.
l..
17 MR. TROUT:
I'm'sorry.
1:
18 JUDGE SMITH:
We're waiting for you.to explain 1
19 this to us.
We don't know that.
20 So you said, what are these problems?
And they 21 didn't mention:anything about inadequate wheelchairs.
22 MR. TROUT:
That's right, Your Honor.
23 JUDGE SMITH:
Now back to you?
24 MS. GREER:
Can you cite me to the interrogatory 2
25 you're referring to?
O Heritage Reporting Corporation (202) 628-4888
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1~
MR., TROUT: :Several interrogatories.
.- i
.2 JUDGE SMITH:
You're not' prepared -
you know-this L 3.
is going to be the thread of the arguments for the rest-of:
~
4 the morning.
'5 MS. GREER:
I'm'sorry..But as Mr. Trout has 6
'mentione'd he asked a great many' interrogatories.
And if you 7
can cite me to the particular'one that~you're referring to 8
it.would be of some benefit.
e, 9-MS. CHAN:
Perhaps it might be easier-if Ms..Greer-10.
pointed to the response that says " wheelchairs."
11 MS. GREER:
I'm trying to find the interrogatory
' 12-
'where he' claims that we did not provide the answer.
13 JUDGE SMITH:
Where'the answer should have been
(
14 included, but was not.
I think'either of you could lead off 15 on this one.
1
- 16 I assume you have no memory of any particular
' 17 interrogatory response explaining-this' point.
p
. 18 MR. TROUT:
Well, I'm looking-for one that goes-191 specifically to inability to evacuate those hospitals.
' 20 MS. GREER:
If I may.
21 MR. TROUT:
Certainly interrogatory 154 which is 22 the last in the JI-46 series which asks for all of the facts 23 underlying the contention other than the one stated in the.
24 previous interrogatories.
8 25 If you want me to find one more specific I can t
Heritage Reporting Corporation (202) 628-4888
19913
(^
b-1' try.
i 2'
145:
"Please state all the facts underlying-3 Interveners assertion that evacuation of the Amesbury and 4
Anna St. Jacques Hospital would take many hours?"
5 MS. GREER:
If I were to refer to the bottom -- to 6
our subpart number three there; "The information that the 7
hospitals have received from NHY is inadequate to prepare 8
the hospitals for such an emergency.
They have not been 9
told what they're going to have to do or what kind of 10 resources they're going.to have to need."
11 I would also refer over to --
12 JUDGE SMITH:
Come up with wheelchairs.
13 Inadequacy with wheelchairs,-if you can.
14 MS. GREER:
I don't have any clear recollection of 15 particularly mentioning wheelchairs in here.
I do know that 16 we made reference to inadequate staffing and resources.
It 17 seems to me that one of the resources you have to have 18 available is in fact mechanical things such as wheelchairs.
19 JUDGE SMITH:
What's the answer upon which you l
20 depend?
21 MS. GREER:
I'm trying to find the -- well, in 22 answer to 145 the question was, again, they didn't ask for 23 wheelchairs.
They say:
"Please state the facts underlying 24 Interveners assertion that the evacuation of Amesbury and i
l 25 Anna Jacques Hospital would take many hours."
O Heritage Reporting Corporation (202) 628-4888
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.h.-
l' JUDGE. SMITH: 'And what did you say?
,'c 2'
MS. GREER:
We said:
"The assertion that=the 3-evacuation of Amesbury-Hospital would take many hours.is 4:
based upon the following facts:'the~ transportation resources.
5-available to effectuate such an evacuation were inadequate."
i' 6
And then going down'it says:
"Again,' they do: not 7.
provide" --'in the second answer, "they;do not provide 8
adequate personnel to effectuate the' removal of patients 9
from the hospital loading on to transport.
Do not have,--
10' hospital personnel do not~have adequate knowledge or 11 training on the evacuation of patients in the event of
.l 12.
radiological emergency.
The information that the hospitals 13 have received is inadequate to prepare,the hospitals for
](]) _
such an emergency.
They don't have resources for" --
14 L15 JUDGE' SMITH:
Are you reading that?
16 MS. GREER:
Yes.
17 JUDGE SMITH:
You' re reading that, " resources?"
c 18 MS. GREER:
I read in number one " transportation 19 resources."
20 JUDGE SMITH:
No, no.
You stopped reading and you 21 started looking at me and I don't know when you stopped.
l 22 reading and began to argue.
23 Just read and tell me when you stop reading.
24 MS. GREER:
Okay.
Would it be easier if I just j
l 25 provided an answer.
Heritage Reporting Corporation (202) 628-4888 l
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19915.
+
1 m
, Well,.if you'want.. Tell.me where l'
JUDGE SMITH:
4 a:
2 lyou talked about resources:for.' preparing people for n
.3' evacuation?
4 MS. GREER: 'It says:
"No advance planning ahead 15
.and no transportation' resources."
6.
JUDGE SMITH:- And wheelchair is a transportation 7
resource?
Out.
The paragraph is out.
~ 8' Now you be careful, you start reading and:then you q
'9 suddenly stop. reading and. start arguing you might mislead v.
10 the Board, and I know you would not want.to do that.
11 MS..GREER:
I would not want to do.that.
12 JUDGE SMITE:
Okay.- Because that almost. happened 13 this time.
3 14 MS. GREER:
Moving on down to -- let me just Xz
~
i 15'
.this out in my copy here.
16 Page 30, the argument has been made that the first 17 paragraph'to the question.
The question reads as follows,
'18
' quote:
"You mentioned that you saw a problem with providing 19 staffs to the schools.
In particular you. mention difficulty 20 with access control.
Why do you see that as being 21 problematic?" End quote.
22 Answer, quote: "Two reasons:
one, with regard to 23 traffic and access control there'is not planning parameter 24 that has been provided to handle the issue of parents coming 25 to the school to retrieve their children.
That gets you
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into.an extremely. volatile situation of being unable'to.
']
R i
i 2
account for the school population and being unable to
]
l 3
monitor the withdrawal of students on a piecemeal basis by l
4 someone who says_they are the parent for that student."
5 JUDGE McCOLLOM:
Close quote.
6 MS. GREER:
Close quote.
7 JUDGE McCOLLOM:
Now then you did.say " unable" 8
instead of "able" three lines back.
9 MS. GREER:
I'm sorry.
I meant to be reading 1 10
" unable" as I was trying to read it accurately.
11 In connection with that we would cite the Board to 12 Contention JI-45, Bases O and A as well as the contention in 13 general.
A
(_)~
14 The contention says:
"SPMC fails to offer 15 reasonable assurance and adequate protective measures can
'16 and will be taken in a timely fashion for schools and day 17 care centers as it fails to comply with," and then a cite to 18 the regulatory. requirements.
19 Bases O says: "Particularly school liaisons will 20 not be able to state how quickly the SPMC ORO buses will 21 arrive at given schools.
As a result prudent school 22 officials will not wait ORO buses but will seek to implement 23 an ad hoc transportation scheme or will ask parents to pick 24 up children."
25 And that leads directly to the scenario that is Heritage Reporting Corporation (202) 628-4888
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19917'
(;
l setIforth there in-the first paragraph:
"There has been no
'2-
. planning" --
3 JUDGE SMITH: ~ I don't see that as being,--
4
'MS.'GREER:
And then going back'to --
5 JUDGE SMITH:
.This is a traffic access control.
6 MS. GREER:- Also pickingL-parents coming to --
7 one of'the-problems that-you're going to have is that' 8
' parents are going to come pick up students at the schools, 9
And then going back to Bases A:
"The SPMC does 10' not contain separate emergency response plans for the staff 11 and students at each of the schools including. day care 12 centers and nursery a:hools absent" -- and then reading down 13 to the bottom of Bases A,
" absent the-existence" -
- quote,
)l 14
" absent the existence of institution-specific radiological t
15 emergency response plans to address the different 16 preparedness needs of each school, there is no reasonable-c,1 17'
-assurance that adequate protective measures can and will be 18 provided to school children," and quote.
19 JUDGE SMITH:
I guess there is nothing in either 20 of these contentions that alleges that accounting of 21 students would be,a problem, accounting for students will be 22 a problem.
23 If there is would you be specific in pointing it 24 out?
25 MS. GREER:
We do not specifically point out --
Heritage Reporting Corporation (202) 628-4888 i
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JUDGE SMITH: 'That's a consequence.of the L ~+'
2-contention,-but not a specific allegation.
3 MS. GREER:
That's correct.
4 JUDGE SMITH:
Mr. Trout?
~5 MR. TROUT:
Your Honor, I didn't see where this
-6 whole discussion of the extremely volatile situation 7
accounting for school population came from.
'I still can't 8
find it in the contention or the bases or the interrogatory 9
responses.
10 JUDGE SMITH:
You don't have any interrogatory.
11 response --
12 MR. TROUT:
That' talks about this, no,-Your Honor.
13 Not that I could find.
()
14 JUDGE SMITH:
Well, Bases O specifically has cause 15 and effect.
It says: "Because of the late arrival the buses 16 will arrive at the schools," not traffic control, but buses j
17 coming late people will implement.an ad hoc transportation 18 scheme or ask parents to pick up children.
19 There is no suggestion there that there is any 20 problem of accounting for chiluren.
There is just none.
21 You just can't get that fror there.
If it exists it exists 22 in "A."
23 MS. GREER:
It simp 3y says --
24 JUDGE SMITH:
Just a general preparedness.
l 25 Now we're going to the - -just general i
I Heritage Reporting Corporation (202) 628-4888 l
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preparedness for schools.
Now we're going to the i
2'
' interrogatories.
Did you ask them -- what did you>ask them 3
'about~this contention?
Whatlis the reason? 'The regular 4
standard language?
S MR.' TROUT;- We did the standard drill, Your Honor.-
6 We went through the' assertions and the bases and asked themL 7
for all the facts underlying.
And then when we got to.the; Li.
8
.end, the last' interrogatory was, all right, state.all the i:
9 other facts-you haven't already stated underlying the 10 contention.
11 JUDGE SMITH:
Now you point out to us where you 12 told them in response to their interrogatories where: traffic-L-
13.
and access-control will lead to an extremely volatile
~(f 14 situation where students cannot be accounted for.-
You point 15E that out?
The ball is in your court?
Where did you do-
'16 that?
17-MR. BROCK:
Mr. Trout, could you give us a page 18 cite on your interrogatories that you just referred to?
19' MR. TROUT:
All right.
The interrogatories -- do 20 you want me to give you the page cite and your answers?
21 MS. GREER:
Yes.
22 l
23 24 25
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MR. TROUT:'
They' start on page 57 of your answers-i#
2 and go through'page 72.
3 (Pause. )
4-JUDGE SMITH:
I'm wondering if you've made any 5
effort.to prepare to respond to this.
'6' MS..GREER:
I'm-sorry, I did not know that -- I.
7=
did'make my. effort to prepare.
I went through theLbases.
I-1 8
went through the langauge.
I went through the bases'.
I did
.9 not know that~in coming back in rebuttal Mr. Trout was then 10 going to cite the particular interrogatories.
11 JUDGE SMITH: 'That's in the motion.
12 MS. GREER:
I did not know he was going to --
13 JUDGE SMITH:
Okay, let's proceed.
()
14 MS. GREER:
Okay.
In the motion, he did not refer.
15
.me to particular interrogatories.
16 (Pause. )
u-17
-JUDGE SMITH:- You can't remember anything like 18 that that creates that idea.
19 MS. GREER:
I cannot recall off the top of my head-20 now.
21 JUDGE SMITH:
I don't know why we should sit here 22 while you search.
I mean, you don't have any better feeling l
23 for your interrogatory responses.
How long do you think it i
24 might take us before you search through it?
I
{
25 MS. GREER:
Well, apparently there are only about I
([)
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11 four pages here of school interrogatory responses.
l 2
JUDGE SMITH:. All right.
l i
3 (Pause. )
4 MS. GREER:
I'm sorry.
I cannot make specific-5
' reference to them right now.
6 JUDGE SMITH:
All right.
That would be a question t.
7 and answer on page 30 that you saw a problem in providing 8
staffs to the schools?
9 Oh, wait a minute.
Excuse me.
10 (Pause. )
'11 JUDGE SMITH:
So we delete beginning, "Two 12 reasons", and delete all of that first paragraph, and delete 13 in the second paragraph the phrase, "in the second
()
14 instance".
15 Now the answer begins, 'Most of. the school 16
' principals".
17 MS. GREER:
Fine.
18 JUDGE SMITH:
All right, next one?
19 MS. GREER:
Is'at page 33.
20 JUDGE SMITH:
Now point to your contention and 21 let's don't sit around and wait and be surprised that the 22 issue is interrogatory responses.
23 MS. GREER:
It would be Contention 45, Basis O and 1
24 A again.
Let me double check that again.
That, I'm sorry, 25 is not 45 although that's what my notes have written down Heritage Reporting Corporation (202) 628-4888 1
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19922 here.
That would-be under Basis 55.
[
2 MS. CHAN:- Contention 55?
3 JUDGE COLE:
JI-55?
4 MS. GREER:
JI-55.
5 MS. CHAN:
Which basis?
6 JUDGE SMITH:
So where is your malfunction 7
allegstion?
i 8
(Pause. )
'9 MS. GREER:
I' m sorry.
One of the problems I have 10 here with this document is that it is not indexed to flip 11 directly to the contentions.
12 (Pause.)
13 MS. CHAN:
It's on page 77 of the 20 February AG 14.
version.
15.
MS. GREER:
You are saying it's on page 777 16 MS. CHAN:
I have the February --
17 MS. GREER:
I think I've got October.
18 MS. CHAN:
Oh, That's not going to help you.
19 Do you want to look at mine?
20 (Document proffered to counsel. )
21-MS. GREER:
Thank you.
That may help.
22 JUDGE SMITH:
It is going to depend on the 23 interrogatories, isn't it?
24 I mean your argument is there aren't sufficient 25 vehicles because some of them are going to break down.
(~s t
Heritage Reporting Corporation (202) 628-4888
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- MS.fGREER:' That's correct.
-Q
'2' JUDGE SMITH: 'All right.
So you were asked to.
3
-give the reasons:why you' don't think.there were sufficient ye
. vehicles, I presume.
]
1 5
And where did.you mention breakdowns?
We move'to 6
'that',' don't we?
7 MS. GREER:
Okay.
'i
'8
' (P aus e. )
L 9
.MS.
GREER:
Can you cite me to the part'where 10' you' --.t'o the interrogatory where you.ask about why.we 11 maintain that there will be inadequate vehicles, inadequate 12
. buses?
13 MR. TROUT:
Yes, Leslie.
I'm on page 131 of yourt g,
14
-answers.
It's Interrogatory No. 254'and Mass AG's response 15 thereto.
"Please state all the facts, estimates and 16-observations other than those discussed in response to tdue
'17 preceding interrogatories underlying Interveners' assertion 18 that the SPMC fails to provide reasonable assurance that an 19 adequate number of buses, ambulances, wheelchair vans, vans, 20' tow trucks, drivers and road crews can and will respond'in a I
21 timely. fashion, and define adequately and timely."
22 Mass AG's response:
" Mass AG has no additional 23 facts at this time."
That's page 131 of your answers.
MS. GREER:
Okay.
Are you saying that we then 24
,r 25 should have -- we should have answered in response to that
':)
i
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19924:
'j~):
Iks:
-1 interrogatory?
C 2
MR. TROUT:
Well, iffyou'were going;to' argue.that 3~
breakdowns was one of the reasons that you had' included in 4
your contention'and your bases, _yes, you should have.
'5 JUDGE SMITH:
Out. 'Unless you have somethingzto 6
add.
7 MS. GREER:
Okay.
On to page 35.which is site-
' /, -
8
. specific ~ planning for schools, and that is Basis-45-A.
- 9 (Pause to peruse documents.)
10' MS. GREER:l There is a question, Interrogatory No.
11 107 which states, "Please state all-the facts underlying 12 Interveners' assertion that. existing emergency plans are 13' wholly inadequate for responding to-a radiological emergency
()
14
'and define. inadequate response."
15-
"Any emergency plans:that exist are not designed 16 to meet the unique circumstances and-exigencies that will-17 occur in the event of a radiological emergency.
Then.to 18 take the obvious.as an example, one need never shelter in 19 the event of a fire or snowstorm in the way that one might-20 have to shelter in the event of a radiological emergency.
21 Inadequate has been previously defined."
22 Then looking on down to the interrogatory I showed 23 to the Board earlier.
Again, there has been no school-
. 24 specific planning and therefore.there has been no planning 25 to take account of after-school activities.
i I
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1 JUDGE SMITH:
Now are you reading that?
j I
l 2
MS. GREER:
No, no.
La L
3 JUDGE SMITH:
Or are you telling me this?
I 4
MS. GREER:
No, telling you this.
I'm referring 5
-you the interrogatory I provided to you earlier which says 6
there has been no school-specific planning, and therefore 7
there has been no planning to take account of such things as i
-8 after-school activities in some of the schools.
l 9
MR. TROUT:
My problem is I don't see an 10 interrogatory response where after-school activities is 11 referred to.
12 MS. GREER:
It really would go under the "no prior-13 planning", so you don't know what's happening at any given
()
14 school.
You don't know whether a school has after-school 15
' activities or not.
16 MR. TROUT:
That's exactly the general sort of 17 statement that we were trying to smoke out the meaning of 18 with the interrogatories.
19 MS. GREER:
Well, Mr. Trout, if you want to know 20 which schools were alleging having after-school activities, 21 it seems to me that as a draftsman you have an obligation to 22 ask.
Not to then come back and say that you've got an 23 obligation to feed me an answer to a question I never asked.
24 MR. TROUT:
Your Honor, if I may respond to that.
25 How can I ask a -- Ms. Greer seems to be saying,
('~#)
Heritage Reporting Corporation (202) 628-4888
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.1j by. general questions _ state,allL.your -- state all the facts l
.e 2
.that you_ purport to have-under,your contention isn't' good i
f3~
enough.. I have'to-ask a specific' question like, are you U
d 4
alleging that there are not>enough wheelchairs,.or are;you
~
15
-alleging ~that there is' going to be a problem with after-6L school: activities.
'~
7 My problem as a draftsman is that I;can't read-8 their minds ~and figure out what they are' alleging the 9
problems are.
I could have asked them whether they alleged 10 that there wasn't enough -- there weren't enough hot lunches 11:
.in.the schools, and that'that was' going to be a problem in 12 radiological emergency planning.
13 The purpose of the interrogatories was to flesh 1 I 14.
out the general, the very general statements in'the 15
. contentions and the bases.. And what we get back.are.another 16 layer of very general statements.
And now they want to try 17 to give us the detail that they should have given us in the
- 18 interrogatory answers.
19 MS. GREER:
It seems to me, I should point out 20 this point to Mr. Trout that if he wanted more specific 21 fleshing out, he could have in fact engaged in further 22 discovery in this case.
There was no --
23 JUDGE SMITH:
He's alleging -- here you come up 24 with there is no site-specific plans.
And then you indicate 25 a range of problems created by that.
Site-specific plans Heritage Reporting Corporation (202) 628-4888
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4 i
19927
~
1 are needed because'a generic plan;is not good'for a wide
'2L range of different types of schools which have' vastly..
-f 3
- different student population, student age grouping, student-4
. teacher ratios, class size,. layouts and construction'for
'5 sheltering,_. organizational capabilities, composition of~
6 Especial.needs children, different methods of notifying 7
parents, et. cetera.
..p I
-8 You undertook to, and you got a contention in
-9 because that.had reasons for it.
10 Then'you come up with after-school activities 11 which are not in there, not' suggested in there, and you.did 12
~ not --'if it was an afterthought, you could have put it in 13:
your. answer'to-the interrogatories.
It is just another l'4 ;
' ncident where you are coming up with an afterthought in the-i 15
' contention without an-opportunity for anybody to address 16 whether indeed this is a problem.
- 17_
And, furthermore, the testimony doesn't even 18.
explain why after-hours activities suchlas-sports is.not..
'19 regarded as a routlne school situation anyway.
I don't 20 know.
I don't see any particular value to the statement to 21 require leaving it in as an issue, as a late-filed issue.
22 MS. GREER:
If I may just point out one of the 23 things that's problematic here, and one of the things that 1
24' at least came out during the exercise.
25 The plan does not have within it under its Heritage Reporting Corporation (202) 628-4888 l
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19928
' 1' Appendix M any'particular hours that the schools-are;open.
LE 2
.One of the-corrective functions that the ORO tried to do i3 during theEexercise was', in order to"get some kind,of' idea 4
when the schools were open was on theLinitial.round.of 5
. contact' calls to ask when the. schools'were closing.;
~6 But,even if they get-backJinformation such as the n
7 school is open between 8:30 and 3:00, in fact that may.be 8'
the. official hours.
But many schools where.there are after-
~9' school. activities such-as sports programs or whatever the' 10.
school may officially close at 3:00.
And theyLwill'get back 11 the answer the school closes at 3:00, but then --
12-JUDGE SMITH:
You are explaining a problem.
13:
.MS. GREER:
Okay.
14-JUDGE' SMITH:
But you.are not explaining why it:
15, wasn't identified as a part of your concern.
.16 17 18 19
.20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 1
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19929 e
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MS.LGREER: -You know, all weLcan.do is' answer'the d
2 interrogatories, the: general interrogatory in the general 3
way it's asked.
And to the extent.that Mr.: Trout was 4'
'looking for more.information I think he had an. obligation to 5
comeLbackLand depose the-various school principals,.
6 superintendents, whatever he wanted to'do-to find out about 7
it.
8 JUDGE SMITH:
All right.
9 MS.'GREER:
Then we're going down page 41, second 10 full paragraph which would be Contention 50,-Bases F.
~
11 Contention 50 reads:
"The SPMC fails to identify all the 12 special' facilities that exist in the EPZ even for those
'13 facilities which have been identified there is not
()
14 reasonable assurance that protective measures can and will 15 be> implemented in.a timely and effective manner.
Thus, the 16.
people in special-facilities will not be adequately-17
. protected in the. event of an emergency.-
And therefore the R18 SPMC' fails to comply.with the various-regulatory 19 requirements."
20 Bases F --
l 1
21 JUDGE McCOLLOM:
Excuse me.
1 22 JUDGE COLE:
Basis F has been withdrawn.
23 JUDGE McCOLLOM:
You say it's JI-50?
24 MS. GREER:
I'm sorry.
)
25 That's what'I've got down here.
-()
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1 JUDGE McCOLLOM:
And Bases F?
.2 MS. GREER:
I have miscited it.
Let'me go to the 3
actual sentence and see what I wrote down next to there.
4 JUDGE McCOLLOM:
JI-50, Bases F in my-February _
5 23rd, 1989 version of the contention says: " Withdrawn by 6
stipulation" dated February 7th, 1989.
7 MS. GREER:
Right.
But that again is then going 8
over to the telephonic communication problem that we cited 9
further.
So in fact, although I wrote down 50 F yesterday,-
10 in fact the reality is that it is the remnant of 50 F 11 continuing over in JI-30, the general telephone contention.
12 JUDGE SMITH:
That's twice you made that mistake.
13 MS. GREER:
I'm sorry.
()
14 JUDGE SMITH:
Same mistake.
15 MS. GREER:
I apologize to the Board.
16 JUDGE SMITH:
So where is it now?
17 JUDGE McCOLLOM:
It's over in JI-30.
18 MS. GREER:
Although frankly, looking at JI-30 I'm 19 afraid that we may have in fact stip'd away the issue 20 through inattention.
21 JUDGE SMITH:
You what?
22 MS. GREER:
We may have stipulated away the issue 23 through inattention, because I'm not sure that JI-30 in fact 24 picks this up as a problem with telephones.
25 JUDGE SMITH:
Would you agree with the motion in
(
Heritage Reporting Corporation (202) 628-4888
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':F 19931 o
NJ' 1L this respect then?
't 2:
MS. GREER:
'Yes.
l H
~3 JUDGE SMITH: 'The paragraph then is withdrawn.
p
'4 That's'the second full paragraph'on page 41.of the.
[
,5'
. testimony isLwithdrawn.
6:
'MS. GREER:
That ' s right. -
7' Then;1ooking again at pages-42 and 43 which would-I 8
be Bases 5'O (d).
9
' JUDGE McCOLLOM:
Which would be what?-
10 MS. GREER:
I think Bases. 50 (d), 45.
1' 11-JUDGE-McCOLLOM: 'Of JI-457 12-MS. GREER:- No.
50 (d) as in David.
13 JUDGE SMITH:
What contention?
14 MS.-GREER:
I'm sorry.
Contention JI-50.
15
. JUDGE. SMITH:
Okay.
16 MS..GREER:
And also going to 50 (d).
17 Another problem which reads as follows --
'18 JUDGE SMITH:
Wait a minute.
19 You're pointing now that this language is under 20 Contention JI-50 Bases D.
21 MS. GREER:
"D."
22 JUDGE SMITH:
Let's catch up with that before you 23 go on to another one.
24 MS. GREER:
What I'm going to do is simply read 25 the sentence that is in issue here.
Heritage Reporting Corporation (202) 628-4888 i
1 19932 1
l JUDGE SMITH:.Well,.there's a large paragraph, I..
L?'
2o
--don't see why you'have tofdo.that.
3
-MS. GREER:
.Okay.
4 Three --
5' JUDGE SMITH:. Wait a minute..
6-
-(Reviewing document.)
7 JUDGE SMITH:
All right'.
8
-MS.-GREER:
Then looking to interrogatory 195-
.9-which asks.the following question: ~ "Please state all the
.t :
11 0 facts underlying Interveners assertion that," quote, "the a
11 implementing procedures for the special population liaisons.
12 are fully drafted, vague, and confusing."
13 Response, quote: " Implementing procedures are
)
14 there laid out in the plan do not give sufficient 15-
' instruction to the'apecial population liaisons as to how 16 they are to effectively carry out their' roles.- Anyone1 E.
17 ~
attempting to follow the implementing procedures as they'are 11 8 currently-set forth in-the plan would become confused as to 19 how they are supposed:to proceed in given situations."
And 20 then it goes on to give a, for instance.
21 I would suggest to the Board that in fact that 22 sentence --
23 JUDGE SMITH:
What's the instance?
24 MS. GREER:
The instances is: "For instance," in
.25 quote, " procedure" -- let me read it accurately, i
) '
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[W
-19933 11 Quote:'"For instance," quote, " procedure 1.10, iT 2
section 5.2.'1 instructs the special population liaison:upon.
- 3, arrival at.the staging areas to," quote, " procedure, location-4' as shown in Attachment 3, layout of the~ staging: area of.
5 Implementing procedure 3.2." End. quote.
"The attachment 15' referred'to is the New Hampshire, Yankee ORO message form, 7
-notithe staging area-layout;whi'ch is attached'at 5 of 7e 8
procedure 3.2..
Moreover, the procedures for the'special
.9 population liaison are' set forth-in two' separate
( rd.
L101 implementing. procedures, 1.10 and 2.7 which are'neither 11 identical ~nor sufficiently integrated with each other to.
12 ensure the confusion and mistakes-do not' occur."
'13 And I think that_the answer there goes directly to-
- ( )
14
'that point.
15 JUDGE SMITH:
Could I read that?
16 MS. GREER: ~ Sure.
17 JUDGE SMITH:
-It's in the.' interrogatory.
'18 JUDGE McCOLLOM:
It's in the bases, though.
'19
'MS.
GREER:
What?
20 JUDGE McCOLLOM:
Everything you read'just now is 21 in the Bases D.
22 (Document proffered to Board by counsel.)
23 JUDGE SMITH:
Do you wish to be heard, Mr. Trout?
24 MR. TROUT:
I have difficulty figuring out what 4
25 the language in that paragraph 42 carrying over to 43 means.
Heritage Reporting Corporation (202) 628-4888 i
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19934.
,m.
(s) 1 And I just confess that to the Board.
I'couldn't figure out-2 what.he was talking about.
3
' JUDGE SMITH:
I thought that I did.
4 MR. TROUT:
All right.
5 JUDGE SMITH:
I thought that they were saying that 6
a particular person can not look at one continuum to see 7
what his responsibilities are, rather he has to look at the 8'
' functions and he may be responsible for more than one 9
function.
10 MR. TROUT:
So he's got to flip'through the book; 11 is that the problem?
12 JUDGE SMITH:
At least in one instance.
13 JUDGE McCOLLOM:
Example.
)
14 JUDGE SMITH:
Yes.
He has to --
15 MS. GREER:
One point, implementing procedure 16 1.10, I believe, only goes up to the alert stage.
And then 17 2.7 it contains implementing procedure -- maybe it's not, 18 yes, I think it's 2.7 contains implementing procedures from 19 site area emergency and general emergency.
20 JUDGE SMITH:
The Board rules that you were given 21 sufficient notice as to this problem.
22 MR. TROUT:
Yes, Your Honor.
23 JUDGE SMITH:
It's a question of how much detail 24
.and we think that the general idea was fairly provided ta 25 you.
So in this respect the motion is overruled.
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Heritage Reporting Corporation (202) 628-4888 j
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\\ss} -
1 How about the Barnicle problem?
2 MS.-GREER:
Yes.
3 The last.section here really simply says that an 4
expert cannot-base his -- en expert cannot base his opinion:
5 upon hearsay except reliable hearsay, 6
We would submit that if you send out an 7
investigator and the investigator comes back and says to 8
you, look, I went to these various institutions, schools and 9
they had three telephone lines coming in.
That it's 10 reasonable to rely upon the investigator's report 1that, that 11 there are in fact three telephone lines.
H 12 In fact, an expert's testimony can be based upon 13 anything.
What is really relevant here is that to the
<s
(_)
14 extent that the basis for that opinion is untrue,'the expert 15.
opinion is then undermined.
Typically, historically what we 16 have done is in fact not asked an expert who is going to i.-
17 give an opinion in a legal proceeding to come in and review 18 all the facts in that particular case.
19 Typically it has been given in the form of a' i
20 hypothetical.
And you say to the expert, if I was to tell l
21 you that there are two to three telephone lines coming into J
22 institution and if I was to tell you that in this k
23 institution the telephones are only manned for six hours a 24 week, would you have an opinion as to -- from a planning j
25 perspective as to these -
your ability to actually reach 1
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'those institutions on'the' event of a radiological emergency..
'O 2
And' based.upon that the expert --
'3 JUDGE SMITH:- You're talking labout situations-7 4?
where the expert.is asked to give an opinion based upon-
- 5
facts otherwise established.
6 MS. GREER:
That's right.-
[:
W,-
7 JUDGE SMITH:.That's a pretty; common-way'for an l,-
8 expert. -But as I understand the gist of this' complaint is
'9-that the expertfis in the first instance establishing the':
, :7 10 facts upon'which his opinion is based, and he isEdoing that' 11 by cross reference to the'Barnicle testimony.. That's what I 12i understand-that to be the objection, although I. haven't read 13 each of the instances, but that seems to be it.
14 Now if that's the case that doesn't comport with:
15 your argument', does.it?
Particularly since'there is no
'16 Barnicle. testimony-left-for him to predicate.his opinion on.
17 MS. GREER:
In fact, even if the Barnicle'-- even 18-if in fact it"hadn't been put in the form of testimony there 19 merely had been an investigator who went out and wrote up a 20 report saying, there are three telephones coming into this 21 ~
institution and he said --
22 JUDGE SMITH:
Should we accept that, and the 23 expert says, well, that's not enough telephones.
And do we 24.
accept that expert's opinion that there are only three 25 telephones as fact?
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1 MS. GREER:
No.
You're not looking to the i
2 underlying -- the. expert is not testifying as to the 3
underlying fact.
4 JUDGE SMITH:
Do we have to go through each of 5
these, apparently?'
1 6
MS. GREER:
Actually the only -- I think in fact j
7 the vast majority of them, A,
B, C,
E, F,
G, and H merely
]
I 8
reference the Barnicle testimony as -- what you can in fact 9
-- we can recharacterize in the document as investigation of 10 investigator Barnicle since it never was admitted.
i 11 That merely he says, look, I have an opinion that 12 there is going to be a problem with -- there is a problem in 13 this plan in terms of -- again let's say going back to the
()
14 instance of telephone communication as being a way of 15 contacting these institutions.
And then he simply states, 16 one of the reasons I think there is going to be a problem is 17 because my information is basing in part upon the assumption 18 that these places only have two to three phone lines coming 19 in.
20 JUDGE SMITH:
That's right.
But there is no other 21 place in the record where that assumption is established.
22 And that is one of the ways that experts testify.
If they 23 are testifying as to the existence of facts and controversy, 24 if they'ra testifying as to the significance of f acts and
{
25 controversy --
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1 MS. GREER:
I think in fact that's where we have 2
the issue.
o 3
JUDGE SMITH:
Right.
Exactly.
4 You seem to agree, but then in the examples you 5
disavow your agreement.
6 MS. GREER:
-No.
I think the problem here is that 7
I don't view the fact that there are two to three phone 8
lines coming into the various institutions as being facts 9-and controversy.
10 JUDGE SMITH:
Where are they established?
11 I think we have to go back to the actual
-12 testimony.
You're not giving us.any standard upon which we 13 can rule for you or against you.
()
14 MS. GREER:
Let's go to the first one and see
'15 whether we can do it in specific and see whether we can 16 follow it out.
17 JUDGE SMITH:
I don't think that this should be 18 necessary.
I suspect when we get to this point it's going l
19 to be rather simple.
I suspect.
Let's wait and find out.
20 Page 19 and 20, right?
21 (Pause to review document. )
22 23 24 j.
25 Heritage Reporting Corporation l
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-JUDGE SMITH:
How does that'information get into-1 2.
the evidentiary record.upon which-he bases his expert 3-
' opinion?- How does that get into.'the evidentiary record?'
4 MS. GREER:
I don't think, in fact, you.ever have 5'
.to put the basis.for the -- the: actual ~ factual basis for an
'l 6
' opinion-into the record any more than you have to put in..--
7 then you have to put in a hypothetical being in the record.
8 MR. TROUT:
Then Ms. Greer doesn't need these L
9 sentences,: and they can all be taken out.
10' MS. GREER:
I think the'only thing.that's going on 11 here is that by giving the basis for his opinion, he.then 12 merely reinforces the weight that the Board can'then choose 13 to give to his opinion.
14 JUDGE SMITH:
Ms. Greer, he expresses a 15 professional expert opinion on certain alleged facts that 16 some school principals made comments about questions that-17 they would have based upon the scripted message.
They 18 indicated that receipt of the message would lead them to ask 19 questions such as where the buses are coming from.
20 MS. GREER:
Okay.
21 JUDGE SMITH:
Now that is a factual predicato for 22 his opinion.
He assumes those facts tre true to express his 23 opinion, doesn't he?
14 MS. GREER:
Yes.
Atad to the extent that those 25 facts are not true, his opinion is undermined.
But what --
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JUDGE SMITH:
Well, how do we know if they are
[G 2
true or not true?
r 3
MS. GREER:
Well, to the extent they are not true, 4
they can come forward -- the Applicants have a perfect right l
5 on cross-examination to come forward and to say, if I was to l'a l '
6 demonstrate to you that this fact is not true --
7 JUDGE SMITH:
No, no, no.
You're offering this 8
expert.
You know, I don't have a feeling of whether you are i
9-being straightforward here.
I just can't believe you are 10 making this argument that they have to come forward and 11 prove that the factual premises of your ' expert are not true 12 before he's prevented from making an opinion on it.
13 MS. GREER:
It's not a question of doing that.
( )-
14 It's a question to -- he's offering -- what he's offering-15 here is an opinion.
He says --
16 JUDGE SMITH:
Based upon what?
17 MS. GREER:
He's saying, I think that there's 18 going to be a problem with this plan.
He then says one of 19 the reasons --
20 JUDGE SMIT ~i:
Based upon what reason?
21 MS. GREER:
He then says, one of my bases I'm 22 looking at is an assumption based upon interviews with 23 Katherine Barnicle that this is the case.
24 JUDGE SMITH:
And then the Kathryn Barnicle 25 assumption is not in evidence is it?
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1 MS. GREER:
It's not~in evidence.
It doesn't have
'2' to be'in evidence.
+
3 JUDGE SMITH:
Yes, it does.
j 4
MS. GREER:
Okay.
That, I guess, is where we-i 5
disagree.
.l 6
JUDGE SMITH:
Yes, that's right.
7 MS. GREER:
I think that had he sent out a private 8
investigator.and we never offered it into evidence, and in 9
fact that private investigator had gone around and talked to 10 the schools, and came back to him and said there are only 11 two to three phone lines coming here.
He can say, look, I 12 based it upon an assumption that it was reported to me that 13 there are only two to three phone lines going in there.
)
14 MR. BROCK:
Your Honor.
15 JUDGE SMITH:
Objection sustained as to -- what do 16 you want to say?
17 MR. BROCK:
Your Honor, could I just make one 18 comment?
l 19 I'm looking at Rule 703 of the Federal Rules of 20 Evidence and I just read that to see if that is helpful to 21 the Board on the iscue.
22 JUDGE SMITH:
I'm aware of the ru30.
All right.
And the last part of that, l
24 concluding that if the basis for the expert opinionr, and I'm L
L 25 not quoting, is of a type reasonably relied en by O
Heritage Reporting Corporation (202) 628-4888 S
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1 experts --
e-J2.
JUDGE' SMITH:
That's right.
3 MR. BROCK:
-- informing opinions or inferences, 4
and.then I am quoting which says,
...the. facts or data need
~
5 not be admissible in evidence."
6 And as I understand it, that's the thrust of Ms.
7 Greer's argument.
8 JUDGE SMITH:
Right.
And she doesn't make it-
~
'9' because these are not the-type of facts that are ordinarily,.
- . a.
10-reasonably relied upon by an expert.
Ordinarily an expert 11 on this type of thing irou have to establish the factual
'12
_ predicate of the facts in controversy.
These are not 13 general scientific facts known to experts or genera 1' expert
()
14-type of facts.
These are particular facts developed byz an 15 investigator for the purpose of the litigation and his 16
' knowledge of those facts are hearsay.
l 17 This is out.
This is out.
Nineteen and 20 are 18 out.
19 Do we have to go through all of them?
20 MS. GREER:
No.
I believe that takes care of A, 21 B,
C, E,
F, G and H.
And then D, I had --
22 JUDGE SMITH:
So A is out, B is out, C is out.
23 What do you say about D?
Do you want to look at that fresh?
1s ll 24 MS. GREER:
I think that's a slightly separate 25 issue.
l Heritage Reporting Corporation (202) 628-4888 L
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JUDGE SMITH:. All right.
i
\\
l' l
2 MS. GREER:
I then had E, F,
G and H also going to 3
the same issue, but I noted --
4 JUDGE, SMITH:
Same issue as what?
5 MS. GREER:
As is found in A.
6 JUDGE SMITH:
So everything is out then.
7 MS. GREER:
Based upon your ruling.
f, 8
JUDGE SMITH:
Yes, except D.
9 MS. GREER:
Except for D.
And let's just look at 10-D for one moment.
11 (Pause. )
12 MS. GREER:
Okay.
He is at that point rendering 13 an opinion that -- let's see if I get this straight here --
(
14 that there's a problem with ORO staffing.
And one of the 15 things he mentions that he sees as being a problem with ORO, 16
.and he's saying, yes, one of the problems that I see is that 17 there is no staff to tell how to shelter.
And he goes on to 18 say'that additional staff from ORO should be available at 19 the time -- in the next question down.
" Additional staff 20 from ORO should be available at the schools to assist the 21 school principals either with interpreting a special 22 protective action recommendation for those schools, should 23 evacuation and should evacuation be ruled out entirely."
24 The sentence then goes on.
25 And in that particular reference --
Heritage Reporting Corporation (202) 628-4888 l
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1 JUDGE SMITH:
Are you looking at the same sentence 2
I'm looking at?
I'm looking at page 31.
3 MS. CHAN:
Wrong paragraph, Leslie.
4 JUDGE SMITH:
The final sentence of the first 5
answer which says, "Several principals, even after hearing 6
the sheltering instructions on the protective action 7
message, indicated that they were concerned that they would 8
not be able to implement effective sheltering measures."
That doesn't even have the virtue of being a 10 predicate for an opinion.
That is just a flat out hearsay, 11 double hearsay, I don't know how many levels of hearsay 12 statement.
13 MS. GREER:
Okay.
It's not being -- it's not (n_)
14 being offered for the truth of the statement.
It's only 1
15 being offered as a basis for his opinion that that you are 16 going to have to have somebody to be at the schools to 17 instruct them how to implement sheltering.
18 JUDGE SMITH:
Your argument as to this sentence 19 isn't even as good as the others.
It is just a flat out 20 statement offered for the truth of it.
It has all the 21 infirmities of the Barnicle testimony, plus the additional 22 infirmity of being once more removed.
23 That's out, that sentence is out.
l 24 MS. GREER:
Okay.
And I think that then completes 1
25 the motion in limine.
em Heritage Reporting Corporation (202) 628-4888
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~ JUDGE SMITH:
All right.
Well, then you can 2
conform it to our rulings and follow the same procedure.
If:
a 3
you wish, you can leave the stricken sentences in, striking 4
them through so that they are still legible as your-form of 5
proffer and then conform it.
Check with Mr. Trout and then 6
we will take it up when we reconvene.
7 MS. GREER:
Okay.
What we will do is we will do 8.
that, if it's all right with the Board, not on the amended 9
testimony that we're planning to offer.
Rather than 10 redundantly doing it on the original draft which has, as I 11 pointed out before, various --
12 JUDGE SMITH:
The KI problem.
13 MS. GREER:
Which has the KI problem, and that we
()
14 were planning to take out anyway.
And we will in fact 15 conform the additional strike-outs on the amended testimony 16 if that's all right with the Board.
17 JUDGE SMITH:
Well, you are trying to work out --
18 yes, you can do it any way you want.
19 MS. GREER:
Okay.
20 JUDGE SMITH:
I mean leaving the strike-outs in 21 are for your purposes.
22 MS. GREER:
Right.
I understand that.
23 JUDGE SMITH:
And then they are requesting you to 24 preserve page numbering, but I don' t know if that's involved 25 here or not, but that's something you work out with them, I
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'with.the Applicants.
A-2 MR. TROUT:.That'can be worked out.
We just would 3
hope we would be able to get that by some time tomorrow.
4 MS. GREER:
I don't know.
We will see what we can 5
do.
6 MS. CHAN:
Well, all you have to do is strike it 7
out on your copy.
8 MR. TROUT:
We're starting on Monday with Mr.
9 Sikich.
10 MS. GREER:
No, we're not.
11 MR. TROUT:
Oh, we're not?
Oh, okay.
12 Never mind.
Sorry.
13 JUDGE SMITH:
Okay, anything further?
(_))
r 14 JUDGE COLE:
Who is the first witness on Monday?
i t
15 MS. GREER:
The Dillman-Moriarity Panel.
}
16 JUDGE MCCOLLOM:
When is Sikich testifying on this 17 testimony?
18 MS. GREER:
This will be going on after -- it goes 19 Dillman-Moriarity, Moriarity, Sikich.
Moriarity has two 20 separate pieces.
One that's put in with Mr. Dillman and one j
21 that's put in separately.
And then it would be Mr. Sikich 22 and then --
L 23 MS SELLECK:
On two pieces, Leslie, right?
L 24 MS. GREER:
Right.
Then it will be Mr. Sikich, 25 and it will be your panel, then it will be Sikich on second-7 Heritage Reporting Corporation (202) 628-4888 1
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1-shift staffing.
L-
2 JUDGE SMITH:
What's Applicants' panel?
k 1
3 MR. DIGNAN:
Panel No. 6, Your Honor.
4 JUDGE SMITH:
And then Sikich after Applicants' 5
panel?
6 MS. GREER:
On'second-shift staffing, pursuant to 7
that.
I think that's roughly the title of it,
'8 JUDGE SMITH:
Anything further this morning?
i 9
MR. TROUT:
No, Your Honor.
10 MS. CHAN:
No, Your Honor.
11 JUDGE SMITH:
We'll adjourn until 1:00 p.m.,-
12 Monday afternoon.
13 MS. GREER:
One p.m.?
'( )
14 JUDGE SMITH:
Yes.
15 (Whereupon, at 11:02 a.m.,
the hearing was 16 recessed, to reconvene at 1:00 p.m., Monday, April 24, 17 1989.)
18
-19 20 21 22 23 24 25 O
Heritage Reporting Corporation (202) 628-4888
Vn
- ,.~. --i CERTIFICATE-p i'
Lt.
~
This.is to certify that.the attached proceedings before the 5,
,E United States: Nuclear Regulatory'CommissionLin'the matter-
,.4 of:-
Name: -Public Service Company of New Hampshire, et al. :
(SeabrookLStation, Units 1 and 2)
, Docket No: ~ '50-443-OL 50-444-OL:
(Off-site Emergency' Planning).
. Place:
Boston, Massachusetts Date:
' April 20,'1989
( f were held.as:herein appears, and that thistis-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 l.
' direction of'the. court reporting company, and that the.
transcript is a true.and accurate record of the foregoing-proceedings.
/S/
/
Y l
l (Signature typed) :
Donna L. Cook l
f-Official Reporter Heritage Reporting Corporation-
)
=
HERITAGE REPORTING CORPORATION (202)628-4888
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