ML20245A569
| ML20245A569 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/21/1989 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#289-8552 ASLBP, OL-1, NUDOCS 8904250276 | |
| Download: ML20245A569 (103) | |
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o ORIGINAL UNITED STATES NUCLEAR REGULATORY COMMISSION l
i l ATOMIC SAFETY AND LICENSING APPEAL BOARD l
l In the Matter of: )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL-1 NEW HAMPSHIRE, ET AL. ) 50-444 OL-1 (SEABROOK STATION, UNITS 1 AND 2)) Onsite Emergency
) Planning Issues ORAL ARGUMENTS )
O PAGES: 1 through 102 PLACE: Bethesda, Maryland DATE: April 21, 1989
...........q..............................................
o( o. i b9 3 %L i 86U78 O HERITAGE PORTING CORPORATION OficialReporters
/104: '44" 0L3~ "o E04<^'6ef 1220 L Street, N.W., Suite 600 E/nIccr C D c./ 4" Washington, D.C. 20005 8904250276 890421 PDR ADOCK 05000443 T PDC .
i UNITED STATES NUCLEAR REGULATORY COMMISSION
, ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of: )
)
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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1,-
~ NEW HAMPSHIRE,-ET AL. ) .50-444-OL-1
) (Onsite Emergency (Seabrook Station, Units' ) Planning Issues)~
,. 1 and 2) )
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ORAL ARGUMENT )
Friday, April 21, 1989 Fifth Floor Hearing Room 4350 East-West Highway Bethesda, Maryland The above-entitled matter came on for hearing, pursuant to notice, at 1:29 p.m.
O BEFORE: JUDGE ALAN S. ROSENTHAL JUDGE HOWARD A. WILBER JUDGE THOMAS MOORE Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 APPEARANCES:
For thg, Apolicant:
THOMAS G. DIGNAN, JR., ESQUIRE GEOFFREY C. . COOK, ESQUIRE .,
Ropes & Gray l One International Place Boston, Massachusetts 02110-2624 Heritage Reporting Corporation (202) 628-4888 O-
l 2 l O APPEARANCES (CONTINUED) :
For the Interveners: .
l JOHN TRAFICONTE, ASST. ATTY ' GEN.
Commonwealth of Massachusetts One'Ashburton Place, 19th Floor Boston, Massachusetts 02108 For the NECNP:
Diane Curran For U.S. Nuclear Reculatory Commission:
GREGORY ALAN BERRY, ESQUIRE EDWIN J. REIS, ESQUIRE Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 0
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l Oral argument on behalf of Commonwealth of Massachusetts i by Mr. Traficonte: 6 Oral argument on behalf of the Applicant, presented by Mr. Dignan: 34 Oral argument on behalf of the NRC, presented by Mr. Berry: 56 Rebuttal presented on behalf of Commonwealth of Massachusetts by Mr. Traficonte: 72 O
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4 1 P_ E Q C E E D_ 1 H G E 2 1:29.p.m.
3 JUDGE ROSENTHAL: Please be seated.
4- Good afternoon, Ladies and Gentlemen.
5 This Board is hearing oral argument this afternoon 15 on the appeal of Interveners Attorney General of 7 Massachusetts et al from the Licensing Board's January 30, 8 1989 memorandum and order in this operating license 9' proceeding involving the Seabroc.c Nuclear Facility.
10 In that memorandum and order, the Licensing Board 11 denied the Intervenor's motion to admit, following a 12 reopening of the record if necessary, a new contention said 13 to arise from a June 1988 exercise that involved in part a
( ) 44 testing of the onsite Seabrook Emergency Plan.
15 The argument is governed by the terms of our March 16 29, 1989, order as provided therein,- each side has been 17 allotted 45 minutes for the presentation of oral argument 18 and the Appellants may reserve a portion of their time for 19 rebuttal.
20 I will now ask counsel to identify themselves for 21 the record and I will start with Mr. Traficonte.
22 MR. TRAFICONTE: Yes. Thank you, Your Honor.
23 I am John Traficonte. I am an Ass! stant Attorney 24 General of the Commonwealth of Massachusetts.
25 MS. CURRAN: Good afternoon.
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'11 I am. Diane Curran. I represent the New England 2 Coalition on Nuclear Pollution. -
l 3- JUDGE.ROSENTHAL:' Well, is it my impression that. i i
'4 only Mr. Traficonte is presenting argument?
.5 MS. CURRAN:. That's right.
6 JUDGE ROSENTHAL: All right.
7 'Mr. Traficonte, do you wish to reserve a portion 8 of your time for' rebuttal?
r 9 MR. TRAFICONTE: Yes, I would, Your Honor. I 10 'would like to reserve fifteen minutes for rebut'tal, if I 11 may.
12 JUDGE'ROSENTHAL: Fifteen.
.13 - All right.
'Okay.
h 14' Mr. Dignan?
15 MR. DIGNAN: Mr. Chairman, Members of the Board, 16 my name is Thomas G. Dignan, Jr. I am a member of the firm 17 of Ropes & Gray, One' International Place, Boston, 18 Massachusetts.
19 With me to my left is my colleague Geoffrey C.
20 ' Cook. We appear for the Applicants in this proceeding.
21 Mr. Chairman, the award of time to the Staff and 22 Applicants was 45 minutes combined. I will use the first 20 23 minutes of that 45.
24 JUDGE ROSENTHAL: The first 20 minutes?
25 MR. DIGNAN: The first 20 minutes of the 45 Beritage Reporting Corporation i (202) 628-4888
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1 minutes.
~2 JUDGE ROSENTHAL: All right.
3 Mr. Berry?
4- MR. BERRY: Good afternoon, Your Honor.
5 My name is Gregory Berry. I am a lawyer in the 6 office of the General Counsel, Nuclear Regulatory 7 Commission.
8 I appear today before you on behalf of the NRC 9 Staff. I am joined today by Mr. Edwin J. Reis who is the 10 Assistant General Counsel.
11 JUDGE ROSENTHAL: All right.
12 Thank you, Mr. Berry.
13 All right, Mr. Traficonte, you may proceed.
14 15 ORAL ARGUMENT ON BEHALF OF THE COMMONWEALTH 16 OF MASSACHUSETTS, PRESENTED BY MR. TRAFICONTE:
17 18 MR. TRAFICONTE: Thank you, Your Honor.
19 Your Honors, I am John Traficonte. I am an 20 Assistant Attorney General with the Commonwealth. First, I 21 would like to express our office's appreciation for the 22 opportunity to present oral argument on the matter.
23 As I noted, I would like to reserve fifteen 24 minutes for rebuttal.
25 I would like to begin by addressing an argument Heritage Reporting Corporation (202) 628-4888
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t uj 1 that the Applicants present I believe for the first time 2 only in their brief in response to Appellant's brief before 3 thio Board.
1 4 Essentially, the argument they presented was that l 5 the exercise of the onsite plan in June of 1988, that the 6 exercise of that plan is not material to the issuance of a 7 low power license.
8 No doubt I will return to this point, but much 9 follows from that and we can get back to that if need be.
10 Obviously, it is the position of the Interveners 11 in this case that the exercise of the onsite plan in June of 12 1988 is material to the issuance of a low power license at 13 any point.that post-dates June of 1988.
( 14 The Applicants in their brief to this Board argue 15 that the exercise is not material but only the plan and the 16 adequacy of the plan reviewed and evaluated according to the 17 50.47 (b) standards.
18 Because I did not have an opportunity to brief 19 that, I would only refer the Board to the language or 20 50. 47 (d) which is in fact quoted in Applicants brief and 21 which clearly says with regard to what is required to be 22 reviewed and assessed for purposes of issuance of a low 23 power license, the very last sentence of 50.47 (d) states 24 that the NRC, and I quote, "the NRC will base this finding",
25 which is the reasonable assurance finding, "will base this Heritage Reporting Corporation (202) 628-4888 '
8 1 finding on its assessment of the Applicants' emergency plans 2 against the pertinent standards in paragraph B of this 3 section and Appendix E of this part."
4 JUDGE ROSENTHAL: Where do you find the 5 requirement that a plan be subject to an exercise prior to 6 low power authorization?
7 MR. TRAFICONTE: I was going to proceed to that 8 point.
9 I believe the sentence that I just read which 10 requires -- and the preceding sentence -- which requires 11 that.the NRC make a reasonable assurance finding --
12 JUDGE ROSENTHAL: But that is an assessment of the 13 plan, isn't it? Can't you read that as meaning that the NRC
( ) 14 is to take a look at the plan within its four corners and 15 determine whether the plan as written is satisfactory?
16 MR. TRAFICONTE: I disagree, Your Honor, 17 respectfully.
18 In fact, I think the language that follows that 19 says that the assessment of the plan is to be made against ;
20 the pertinent standards of paragraph B and Appendix E simply 21 references back to the pertinent B standards. )
I 22 And on that point, I would refer the Board to 23 03) (1 4) which would be a pertinent 03) standard that itself 24 requires that appropriate exercises be held.
25 JUDGE MOORE: Mr. Traficonte, are you aware of all O- Heritage Reporting Corporation (202) 628-4888
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.2- had any exercise prior to low power?
3 MR. TRAFICONTE: Am I aware that that is a fact?
4 (Pause) 5 I was not.
6 JUDGE MOORE: Are you aware of the Commission's 7 decision in this very case regarding what they said about 8 low power with regard to the necessity of sirens?
9 ', ~ MR. TRAFICONTE: I am, Your Honor.
10 JUDGE MOORE: Didn't that decision spell out that
- 11. among others, that most of subsection (b) is inapplicable to 12 low power?
13 MR. TRAFICONTE: In fact, in their discussion-on
] [ 14 the siren issue, as I understand the Commission, the 15 Commission stated the low level of risk at low power 16 operation.
17 In addition to the fact that there is an existing 18 onsite response plan with trained personnel capable in the 19 event of some kind of accident or unusual event -- a trained 20 onsite staff capable of returning the reactor to a safe 21 condition were grounds, as I understand the Commission's 22 action vis a vis sirens, for separating the siren 23 requirement from the issuance of a low power operation.
24 So I believe there is.a link, but the link runs 25 the other way, which is that you don't need sirens at low Heritage Reporting Corporation (202) 628-4888
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1 power because first there is a lower level of risk of an 2 offsite event.
3 And two, the Commission stated clearly that at low 4 power there is a trained onsite staff capable of mitigating 5 in the very, very unlikely event that there was the 6 possibility of an offsite release.
7 We read that to mean that that would put an extra 8 burden on the onsite plan and the onsite staff to be 9 adequately trained and prepared.
10 JUDGE MOORE: Would you care to venture a guess as 11 to what parts of subsection (b) are applicable to low power 12 operation?
13 MR. TRAFICONTE: Well, if I could continue, I em is_)14 would in the form of a guess, and it is only that.
15 I think it is quite clear that (b) (2) would be 16 something that speaks directly to onsite staffing. I 17 believe that (b) (14) , to the extent that it describes a 18 requirement that plans be exercised, would run as well to 19 the onsite --
20 JUDGE ROSEPTHAL: So you are taking the position 21 that there must be an exercise prior to low power 22 authorization?
23 MR. TRAFICONTE: Yes.
24 JUDGE ROSENTHAL: All right.
25 MR. TRAFICONTE: And once held, it would be
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11 f) v 1 material to the issuance of such a low power license.
2 JUDGE ROSENTHAL: If in fact the Commission has 3 authorized low power with respect to many reactors without 4 an exercise having taken place, would you agree that that is 5 at least implicitly a rejection by the Commission of your i 6 position on that?
7 MR. TRAFICONTE: Before I answer that question 8- directly, Your Honor, I would like to refer to another 9 requirement that is referenced in 50.47 (d) because in 10 addition to referencing the (b) standards, Section (d) makes 11 reference to the pertinent portions of Appendix E of this 12 part; that is to say, Appendix E to the emergency planning 13 regulations.
/~T 14 At Section IV, subsection (f), and I am in
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15 Appendix E, at Roman numeral IV, subsection (f), number two 16 of that section or that part, there is a clear section that 17 each licensee at each site shall annually exercise its 18 emergency plan.
19 We read that to be an indication that in fact the 20 nature of the regulatory scheme is that -- I should add 21 number two should be read in addition to number one, which 22 of course is the full participation requirement.
23 That numbers one and two should be read together 24 to indicate that before a low power license would issue, 25 reasonable assurance must be found; that the pertinent n
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\_ 1 standards in (b) and in E would'have to be met and reviewed 2 to determine whether reasonable assurance has been made out; 3 and that E indicates that yearly there is to be a licensee L 4 exercise or that there is to be an exercise of the 5 licensee's onsite plan. 5 6 So back to the direct question with a direct j
7 answer, I am not familiar with the history of the issuance j 1
8 of low power licenses since 1984, I believe which is the J 9 date of the promulgation of (d).
10 But to the extent that I had been an attorney in 11 any of the cases cn1 the part of the Interveners and there 12 had been the issuance of a low power license with no prior.-
13 - at any point -- no prior exercise of that onsite plan, I
( ) 14 would have held that to be in violation or argued that that 15 was in violation of the regulation.
16 JUDGE WILBER: Mr. Traficonte, 50. 47 (d) also 17 addresses fuel loading. Are you saying that the licenses 18 that they would all have is in violation o. 50.47 (d) ?
19 MR. TRAFICONTE: I'm sorry. I missed the latter 20 part of your question.
21 JUDGE WILBER: 50. 47 (d) also addresses fuel 22 loading, doesn't it?
23 MR. TRAFICONTE: Yes, it does.
24 JUDGE WILBER: Now are you saying the license they 1
25 presently have is in violation of that? !
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.%) 1 (Pause) 2- JUDGE ROSENTHAL: In short, they have a fuel 3 loading license.
4 JUDGE WILBER: They have a fuel loading license 5 now.
- 6. JUDGE ROSENTHAL: And that was given to them 7 without an exercise. And I think that Mr. Wilber's question 8 is: in your view, was the grant of that fuel loading 9 license in violation of the regulations given the fact that 10 it was not preceded by an exercise.
11 MR. TRAFICONTE: Well, we may need a little 12 history here to put this in context.
13 Understand first of all that the June 1988 onsite exercise was not the first exercise of the onsite plan; that
{ } 14 15 there had been prior exercises of the onsite plan going back 16 --
17 JUDGE WILBER: And these were acceptable?
18 MR. TRAFICONTE: Let me put it this way. These 19 were not challenged by contentions filed by Intervenor.
20 They were reviewed by NRC staff. No doubt in the record of 21 the docket there are NRC inspection reports similar to the 22 one that we used as the predicate in part of our contention 23 here.
24 There are no doubt in the docket, post-dating 25 those earlier onsite exercises, staff reports. I know there O rie 9- veres 9 correr eie=
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() 1 is a reference to such in the SER and I believe the briefs 2 have the reference to the page in the SER where a reference 3 to this earlier exercise is made out.
4 So the historical point is an important one, which 5 is that there has been a series of exercises each of which, 6 because it is an annual requirement, each of course 7 superceded by its successor for purposes of determining 8 which is going to be the material exercise for a low power 9 license that has not yet issued.
10 JUDGE ROSENTHAL: Mr. Traficonte, you have asked 11 for half an hour on your opening. You have already consumed 12 over ten minutes. There are a number of issues. You might 1
13 want to move on.
I might just say parenthetically that you could
( } 14 15 have requested leave to file a reply brief and addressed 16 these issues which Mr. Dignan had, as you said, raised at 17 least on the appellate level for the first time.
18 MR. TRAFICONTE: The time spent on the materiality 19 of the exercise is w'311 spent, Your Honors, because quite 20 frankly I believe that much of the case, as least as we 21 understand it procedurally as well as substantively, turns 22 on the issue of materiality.
23 Before I go to other matters, I just would like to 24 add that the Staff, which I might note would be unusual in 25 these circumstances, the Staff from Day 1 has joined our
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) 11 view, is in-harmony with our view, that the exercise of the 2 onsite plan is material to th^ issuance of a' low power 3 license.
4 JUDGE ROSENTHAL: All right.
5 MR. TRAFICONTE: If I could move on. Because of 6 its materiality, it'is our view that the UCS case -- and 7 this is quite frankly almost syllogistic -- it is our view-8 that because it is material to-a low power license, the UCS 9 case -- and I am talking about the UCS case of 1984, Egg vt 10 HEC -- the UCS case indicates that the public has a right to 11 a hearing on such material issues.
12 ' JUDGE ROSENTHAL: If it is sought in a timely 13 fashion, l
14' MR. TRAFICONTE: Yes.
15 JUDGE ROSENTHAL: Now in thi.s instance, Mr.
16 Traficonte, I would like you to addresa yourself as to why 17 you are not late, too late, in raising these issues before 18 the Licensing Board.
19 MR. TRAFICONTE: Let me address it in two parts.
20 Let me address first why we were not late as I believer the 21 Licensing Board understood that we were late.
22 The Licensing Board understood that we were late 23 because by necessity any contention that would have been 24 filed on the onsite exercise in June of 1988,-any contention 25 that would have been filed, no matter when, was
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2 JUDGE ROSENTHAL: That is clearly the Catawba 3 holding. I think the question here is not whether this 4 contentien was a late one. It clearly was late under 5 Catawba.
6 Speaking at least for mycelf, I found your 7 endeavor to distinguish Catawba wanting seems to me that the 8 question is not whether you were " late" but whether you were 9 " inexcusably" late at the time that you actually filed.
10' MR. TRAFICONTE: If I could beg your indulgence, I 11 would actually like to present some argument then in support 12 of our effort to distinguish Catawba.
13 JUDGE ROSENTHAL: Well, you can do it. I don't
( ) 14 know, you may be able to sway me.
15 MR. TRAFICONTE: I would like to try.
16 JUDGE ROSENTHAL: All right. You can try.
17 MR. TRAFICONTE: I would like to try because I 18 will --
19 JUDGE ROSENTHAL: You can try that but I think you 20 will also want to spend some time on why assuming that the 21 contention was filed " late", it was not " inexcusably late".
22 MR. TRAFICONTE: Let me do both.
23 JUDGE MOORE: And while you are at it, would you 24 work in how you would distinguish the difference between an 25 emergency plan that is not yet filed, which was the Heritage Reporting Corporation l
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17 underlying factual basis in Catawba -- there were no
(}1 2 contentions because the emergency plan had not yet been i
3 written, filed; it wasn't in existence -- and the fact as-4' you are dealing with them here.
5 MR. TRAFICONTE: Yes.
6 I will be brief on Catawba if I am playing to an 7 audience that is going to be very difficult to convince. I 8 read Catawba in the following way.
9 There was a requirement that contentions be filed.
10 There was timely notice of a deadline for the filing of 11 contentions that ran to a series of issues or matters.
12 The time came and went. After the time came and 13 went, a document became available, not because it had been
(^T 14 withheld illicitly but --
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15 JUDGE MOORE: That document was an emergency plan 16 and the contentions were on the alleged deficiencies in the 17 emergency plan.
18 MR. TRAFICONTE: Your Honor, I would direct your 19 attention to page 1049 of the Catawba decision. I am 20 reading at 17 NRC 1041, 1049.
21 At that point, the Commission makes quite clear t
22 that when an ergency plan itself is not yet created and in !
23 existence, that the Catawba holding that you are supposed to 24 file a contention in some fashion in advance of its 25 existence does not carry to that point.
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'~') 1 The Commission at that page -- and I can read it v
2 into the record if need be -- the Commission is 3 distinguishing, distinguishing its general Catawba holding 4 from a situation in which an emergency plan is not yet in 5 existence.
6 Its paragraph No. 3 distinguishes that precise 7 circumstance.
8 JUDGE MOORE: Did you read our decision? Indeed 9 it was the three of us who crafted that decision.
10 MR. TRAFICONTE: Yes I did. I thought it was an 11 extremely wise' decision.
12 JUDGE MOORE: And that decision reverses.
13 MR. TRAFICONTE: As I remember, in fact nobody
(~) 14 opposed it. I think we had the first time in NRC history
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15 that no party except apparently the Commission sui sponte 16 thought it was wrong.
17 I did read that.
18 JUDGE MOORE: Which only proves that we can please 19 no one.
20 (Laughter) 21 JUDGE ROSENTRAL: All right.
22 MR. TRAFICONTE: If I might, I want to come back.
23 And again, since I am convinced that Catawba doesn't govern 24 this situation, I feel duty-bound to spend a couple minutes ]
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'l JUDGE ROSENTHAL:. Well, in.the final analysis we 2 are going to have to read.the Catawba decision again and we 3 are going to~have to reach our own decision on it.
.4 I think'we have your argument and your endeavor to 5 distinguish it. I think you would be spending your time
.6 much more advantageously if you will explain to us why, 7 assuming Catawba does apply, your motion should not be
.8 deemed to have been inexcusably late.
9 MR. TRAFICONTE: All right. I will do that.
10 The argument comes basically again in two parts.
11 The first part is that we needed, as the initial 12- predicate, we needed the Staff's inspection report. Wo.did 13 not have access to the TSC and to the EOF. We did not
) 14 monitor actions during the exercise of the onsite staff.
'15 The predicate was in part-that we needed the Staff 16 report. Upon receipt of the report and upon reading of the
'17 report, in order to meet the standards of an exercise 18 contention as established by this Board and by the 19 Commission, it was necessary for us to not only meet the 20 specificity and basis requirements, of course, but to meet 21 the requirement that we plead and allege a fundamental flaw 22 in the exercise.
23' That is to say we need to show that the exercise
-24' and the exercise performance uncovered, if you will, a 25' defect in the plan that was being exercised.
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(.) 1 We believed, we believe today, that in order to j j
? make that showing in a pleading, one would at a minimum I i
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4 tested by the e::ercise. ]
1 5 JUDGE WILBER: What objective did you use? What 6 objective did imi glean from the -- I assume you are talking
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7 the exercise plan.
8 MR. TRAFICONTE: The scenario document that we 1 9 reference in the briefing and that was available to us at 10 mid-August, the seven-volume scenario document, contains in 11 one of its sections a list of I believe 38 objectives.
12 JUDGE WILBER: Okay. Now which of those --
l l 13 MR. TRAFICONTE: The critical one that we
( ) 14 evaluated the performance against was the objective of the 15 exercise tnat the onsite Staff-indicate technical knowledge 16 sufficient to first of all diagnose essentially the state of 17 the reactor, grasp what is taking place and propose and 18 assess the appropriate technical responses to return the 19 reactor to a stable condition; i.e., mitigate.
20 One of the objectives of the onsite exercise was 21 to establish that the onsite Staff was adequately trained --
22 at some level this is not surprising -- that you would want 23 to be assured that the onsite Staff is capable of mitigating 24 an accident and returning the reactor to a stable condition.
25 JUDGE MOORE: Mr. Traficonte, you said that was Heritage Reporting Corporation (202) 628-4888 l
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21 (m) 1 not surprising. I would suggest to you that it is self-i 2 evident.
3 And if it is self-evident and not surprising, then 4 why on earth did you need that document to know that that 5 was an objective of the exercise.
6 Anytime you are exercising a plan involving a 7 nuclear plant in an accident scenario and it is operating, 8 the objective is to achieve a safe shutdown.
9 Is that not the case?
10 MR. TRAFICONTE: Your Honor, with all due respect, 11 I would say that although it may be common-sensical and make 12 immediate rational sense, I would refer Your Honor to a 13 series of documents called extent of plays, which are exercise scenario documents generated by consultation with
- ()14 15 the NRC, FEMA and the Applicants. They are normally 16 generated in the offsite context but the argument would 17 carry.
18 The extent of plays very often limit the nature of 19 an exercise and restrict the purposes of an objective for a 20 series of contingent reasons.
21 And I had the personal experience eof having 22 reviewed an exercise performance and having read for example 23 a FEMA report and having come to the decision that there is 24 an inadequacy in scope or that there is an inadequacy in 25 performance, only to be confronted by the argument by Staff, A Heritage Reporting Corporation
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22 1 by FEMA.and in fact by Licensing Boards, that I have failed 2 and neglected to review the extent of play which defines, if 3 you will, the parameters of what the exercise was "really" 4 trying to show.
5 When seen against the extent of play, the argument 6 goes, what appears to be in fact a fundamental flaw, is not.
i 7 It disappears.
8 That the test of actually alleging adequately a 9 fundamental flaw is that you know what the objectivos were 10 and how the objectives were to be tested.
11 And that information is available --
12 JUDGE WILBER: I think you just walked right into 13 Catawba again in the next few sentences after those that you-r 14 read, which says the contentions could be modified with 15 subsequent submittals.
16 MR. TRAFICONTE: Well, they might be modified if 17 they.could survive the fundamental flaw knife which is going 18 to be pulled by the Applicants as soon as we filed it.
19 Had we filed the contention prior to our review of 20 those scenario documents, had we failed to direct in the 21 contention, had we failed to direct the Licensing Board to 22 the objectives that were being tested and the way sin which 23 the objectives were going to be tested, the contention would 24 not have been admitted.
25 JUDGE ROSENTHAL: And you think this contention s ;
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I 23 1 alleged a fundamental flaw within --
2 MR. TRAFICONTE: I don't think there is any 3 question about that, Your Honor.
4 JUDGE WILBER: What is the fundamental flaw?
5 MR. TRAFICONTE: This. Board knows better than I 6 what a fundamental flaw is.
7 JUDGE WILBER: I mean what is the one that you are 8 --
9 MR. TRAFICONTE: Oh, I'm sorry.
10 There is more than one,-in fact.
11 JUDGE WILBER: All right.
12 MR. TRAFICONTE: But if I cou.".d summarize it in
- 13. one general heading. It is that the performance of the
~r 14 onsite personnel revealed that the training -- and here it 15 might be the matter of training of specific' individuals 16 and/or as a generic matter, and that would be something that 17 would have to be explored in discovery -- that the training 18 provided to the onsite personnel has not been adequate with 19 regard to the matters where the Staff indicated in its 20 initial report --
21 JUDGE ROSENTHAL: Assuming that it does 22 demonstrate that, why isn't that readily correctab.'.e? I l
23 mean it doesn't seem to me that the matter of training, if 24- you are right that the exercise indicated that there was 25 some shortcomings in the training of the personnel, that is O Heritage Reporting Corporation (202) 628-4888 3 l
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(} 1 precisely the kind of thing I think that would be readily 2 correctable and therefore not deemed a fundamental flaw 3 within at least our definition of the term in the Shoreham 4 litigation.
5 JUDGE MOORE: Doesn't the fundamental flaw have to 6 be a demonstration of a fundamental flaw in the plan?
7 MR. TRAFICONTE: Well, I have read carefully Your 8 Honors' ALAB-903 on this very issue. In fact I reread it 9 again in preparation.
10 As you may or may not have been aware, we had full 11 briefing of the impact of ALAB-903 on the stage of the 12 offsite case when were were filing exercise contentions.
13 We in fact or at least I filed a fairly lengthy
/ analysis with our Licensing Board on what 903 meant. Let me b' 14 15 say this. You have held that -- the Appeal Board has held 16 that it requires an essential element, an essential element 17 of the plan be at issue and that a significant revision of 18 the plan be required.
19 JUDGE ROSENTHAL: Yes.
20 MR. TRAFICONTE: We do not believe that that 21 should be interpreted, for example, to eliminate training 22 defects that are revealed in an exercise.
23 JUDGE WILBER: Defects in the plan, the training 24 plan, or defects in the execution of training or defects in l 25 the reception of training?
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' s_) - l ' What defects are~you referring to?
2 MR. TRAFICONTE: Well, the word " plan", you know, 3- it sounds like a hard and fast thing that you are 4 referencing. But it's got some rough edges.
5 An emergency plan has a training component in it.
6 In many cases, the training component is a series of 7 training modules, if you are looking for a document.
8 But the plan understood as I think a description 9 of reality, the word " plan", when it comes to training, 10 references a training program, if you will, which includes 11 the modules,=the training instructor, the courses of
'12 instruction, the activities of training. All that is part
'13 'of "the". plan.
( ) 14 JUDGE MOORE: But what defect are you fingering 15 here?
16 MR. TRAFICONTE: That when tested, the onsite 17 personnel indicated -- and again we are not going to get 18 into the merits of it or maybe we will, but we are not yet 19 in the merits, assuming that the defects we allege are 20 approvable -- the onsite personnel revealed a lack of 21 adequate understanding with regard to a set of enumerated 22 points which flow from some defect in the training.
23 JUDGE MOORS: Fine. Now don't you have to 24 identify that defect from which they flow and you haven't 25 done that, have you?
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().11 MR. TRAFICONTE: I think we have.
2 The defect from which it flows -- well.
3 JUDGE' MOORE: The students were asleep that day?
4 That is not a fundamental flaw.
i 5 The teachers are idiots?. That may or may not be a 6 fundamental flaw depending on the numbers of teachers that 7 fall into'that category.
8 Or, that the material they are teaching'is 9 erroneous. That clearly may meet the fundamental flaw of-10 the training plan because it would require a revision which 11' is what the Commission has said is necessary, what we said
. 12 is necessary.
13 Don't you have a responsibility to identify what
( )L1-4 the culprit is in order to survive that fundamental flaw 15 test?
16 MR. TRAFICONTE: To be completely candid with you, 17 I think it depends upon the posture of the case at which 18 point we are required to identify the culprit.
19 We believe we identified the culprit from its 20 effects, the performance, which is what we had, what we were 21 reviewing.
22 We worked from the effects backward to identify 23 the culprit being, as I said, I use " training" as a metaphor 24 here.
25 We identified the culprit being inadequately O Heritage Reporting Corporation (202) 628-4888 i
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('N 1
(_) I trained staff. You want us to go forward in a contention 2 and say we will tell you in exactly what ways or for what
- 3. reasons or from what causes that inadequately trained staff 4 stems.
5 We cannot know that, of course, until we know 6 first of all who the individuals are that did what, what ]
1 7 training modules that -- we could make a blunderbuss attack 8 at every training module.
~9 JUDGE ROSENTHAL: Well, but what you are telling 10 us then is that you did not need this additional time to 11 identify the fundamental flaw because you haven't identified 12 it yet and you said that it is unreasonable to hold you 13 accountable for identifying it at this point. -
( ) 14 MR. TRAFICONTE: No. Your Honor, if you 15 understood me to say that, I misspoke myself. I did not 16 indicate we needed additional time to allege a fundamental 17 flaw because we needed the time, for example,. to review 18 training modules.
19 I said we needed the time to allege a fundamental 20 flaw because a fundamental flaw requires that we identify 21 clearly and fairly persuasively the relationship between 22 exercise performance, the objectives and scenario that was 23 being exercised, and to work it back to determine what it 24 was that they were trying to establish through the -- what 25 were they trying to establish by means of the exercise.
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28 lh 1 That is why -- and I say that we needed additional 2 time. We needed the additional time in the sense that we 3 needed to review the scenario documents.
4 That is a different argument than we needed the 5 additional time because we had to engage in a very detailed 6 summary or very detailed exploration of the various training 7 modules offered, their content, et cetera.
8 My view is --and I don't think this is an 9 unreasonable one -- that cannot be a pleading requirement.
10 The requirement has to be, if it is going to be a reasonable 11 one, is that the exercise results are linked to a defect in 12 the plan as best that the Interveners can make that out at 13 the time.
d h 14 JUDGE MOORE: I would venture a rough guess that 15 in 97 per cent of all exercise contentions I could tie it to 16 training then, a failure of training.
17 MR. TRAFICONTE: You could tie it to "at least" a 18 failure of training.
19 JUDGE MOORE: Yes.
20 MR. TRAFICONTE: To at least a failure of training 21 as well as perhaps some other things.
22 JUDGE MOORE: And which kind of fashions the 23 fundamental flaw test.
24 JUDGE ROSENTHAL: I don't understand why a failure 25 of training isn't readily remediable. I mean if these Heritage Reporting Corporation (202) 628-4888
29 llh1 people --
) 2 JUDGE WILBER: You retrain them.
l 3 JUDGE ROSENTHAL: What?
4 JUDGE WILBER: You retrain them.
5 JUDGE ROSENTHAL: You retrain them.
6 I don't, for the life of me, understand how a 7 failure of training as reflected by people not doing what 8 they should be doing could be regarded as a fundamental flaw 9 within our Shoreham definition.
10 MR. TRAFICONTE: Then frankly I am at a loss to 11 understand why the NRC is exercising emergency plans, for 12 this reason --
13 JUDGE ROSENTHAL: They may be exercising emergency lll 14 plans to see what shortcomings there are and to require the 15 utility to correct the deficiencies.
16 I mean I would suppose if in fact there was a 17 demonstrable failure of training in this instance that the 18 Commission would be quite insistent that that be remedied.
19 MR. TRAFICONTE: But Interveners would not be 20 permitted to litigate. Is that the follow-up?
21 Because if that were the case, if that were the 22 case, Your Honor, if the Commission were prepared to 23 interpret the requirement, if the Commission were prepared 24 to read " fundamental flaw" as the scenario that Your Honor 25 just mentioned, the Commission would require that all those Heritage Reporting Corporation (202) 628-4888
30 lh1 people be trained.
2 Therefore, it would be a discovery that the 3 exercise disclosed that would be material to licensing.
4 There would have to be remedial actions taken prior to the 5 issuance of a license that has been revealed by the 6 exercise. Training was so deficient that the NRC stepped in 7 and said you must engage in retraining or different 8 training.
9 If the Commission took the view that that was what 10 the exercise revealed but that the Interveners are not going 11 to be permitted to litigate that, then frankly I think you 12 would be contravening the UCS case, because UCS says that we 13 would have a right to litigate anything material to llh 14 licensing.
15 JUDGE ROSENTHAL: Mr. Traficonte, you have used 16 your half an hour of your time.
17 MR. TRAFICONTE: I have?
18 JUDGE ROSENTHAL: Yes.
19 MR. TRAFICONTE: And I do want to reserve some 20 time. I would like to reserve it.
21 If Your Honor has another question?
22 JUDGE WILBER: I have one question before you 23 leave.
24 Somewhere you mentioned that the offsite Board in 25 a June 29th order said that they would not entertain this Heritage Reporting Corporation (202) 628-4888
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31 hI contention, is that correct?
2 (Pause) 3 July 29th. I'm sorry. I had the wrong date.
4 MR. TRAFICONTE: That is incorrect in part. What 5 we said was in I believe a July 29 order admitting --
6 JUDGE WILBER: Contentions. !
7 MR. TRAFICONTE: -- contentions, yes -- I am 8 trying to remember what contentions. I think they were at 9 that point " plan" contentions.
10 There was a discussion about an issue as to 11 whether it was on the onsite side of the ledger or the 12 offsite side of the ledger. And the Board ruled that it 13 was, in its opinion, on the onsite and therefore that it was l h 14 not going to admit it into the offsite proceeding.
15 JUDGE WILBER: My question is where in that order, 16 which is something in excess of 60 pages, I am just 17 wondering where is it in there? I have not been able to 18 locate it.
19 MR. TRAFICONTE: I can certainly find it for you.
20 I don't have it in my head, unfortunately. I don't have 21 that opinion with me but I can very quickly determine what 22 Mass AG contention it was.
23 I believe it was 56 in fact. It was Mass AG 24 Contention 56, subpart E. And in E we made an allegation 25 about using a monitoring device on the stack as a link to an Heritage Reporting Corporation (202) 628-4888
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~ '
1: .offsite recommendation.
'2 So it is in that portion of the discussion of the 3 July meniorandum.-
4 JUDGE MOORE: 'Before you go, the FEMA document, 5 .the multiple volume set which you referred was necessary to'
- 6 be able to assess the meaning of the Staff inspection L
7 report, is that'a standard FEMA do.% ment?
8 My personal impression of the way FEMA operates is 9- they are big. fans'of. check lists. I am just wondering if 10 thisLis a standard FEMA document that is used time and time
- 11. again for. nuclear plants.
12 Is it?
- 13. MR. TRAF_OONTE: The answer is yes and no.
14 The format is generic, if you will. That is to
(
15 say there'is'always, in my experience, vast as it is, there 16l is always a scenario document. It always has an extent of 17 play portion, et cetera, et cetera.
18 It is, however, very specific for each es:ercise 19 because the accident model is different. The negotiations-20 leading to the extent of play vary and so therefore the 21 extent of play varies.
2:2 JUDGE MOORE: But the objective of safely shutting i 23 down a plant is different every time? That objective i
l somehow changes from scenario to scenario in that document 24 25 regardless of the play?
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(/~T,j 1 MR. TRAFICONTE: Well, let me make two points.
2- You may have misunderstood or I may have miscpoke myself 3 again.
4 !The objectives that are set for the onsite i
5 performance are noi, FEMA objectives. They are NRC Staff 6 objectives.
7~ The NRC Staff reviews the performance of the 1
8 onsite personnel. FEMA does not-review it. The 9 documentation, however, the NRC objectives as they are 10 enumerated appears in a document entitled "The FEMA 11 Scenario" document.
12 So that is the first part of the answer, 13 The second part of the answer is that I know as a D matter of fact that there are certain FEMA objectives that
( ) 14 15 sometime are not tested in particular exercises and some 16 that are.
17 So again I would say the answer is not a generic 18 one. But you would need, in order to determine whether a 19 particular objective -- in this case, a Staff onsite 20 objective -- was being evaluated, you would need to consult 21 the actual document generated for that onsite exercise to 22 determine what was being tested.
23 JUDGE ROSENTHAL: Okay.
24 MR. TRAFICONTE: I would like to reserve ten 25 minutes then.
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~1 JUDGE ROSENTHAL: Well, I think since the last two 2 or three minutes have been devoted to responding to our 3 questions, we might give you the full fifteen.
4 MR. TRAFICONTE: All right.
5 JUDGE ROSENTHAL: Mr. Dignan? ,
6 7 ORAL ARGUMENT ON BEHALF OF THE APPLICANTS, 8 TRESENTED BY MR. DIGNAN:
9 10 MR. DIGNAN: I would like to address at the outset 11 two matters which my learned friend from Massachusetts 12 devoted a good part of his argument to.
13 The first is this question of delay. You have
.()14 been told that it was necessary to look at this set of 15 objectives in order to frame the contention in order to meet
.16- the standards of a fundamental flaw articulated in ALAB-903, 17 I suggest respectfully that argument cannot wash 18 for a very simple reason. The delay question is a 19 subjective, not an objective test. That is, the.whole 20 purpose of this is you don't sit on a matter unduly.
21 They filed the contention September 16, 1988, 22 ALAB-903, if I am correct, came down November 10, 1988. It 23 can't have been concern over this Board's ruling in ALAB-903 24 that dictated the delay. !
25 JUDGE ROSENTHAL: Well, but it could have been r
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()1 concern'over fundamental flaw because that concept'was 2 certainly abroad, was it not, Mr. Dignan, in September even
!' 3 though 903 had not given it the Appeal Board shape?
4 MR. DIGNAN: Let us say that I certainly have to 5 agree with what you said. I also think that had I been the-6 lawyer framing that contention, I-would have framed it right q 7 off the Staff notice without any concern about the 8 fundamental flaw as it came down in 903. Because 903, a 9 modest way as the Chairman usually does it for his Panel, 10 shaped it. It gave it reality. Up to then, no one knew 11 what it meant.
12 And what it did was put a framework around it. So 13 to say that what the concern was fundamental flaw in the Commonwealth's mind, I respectfully suggest it just simply
) 14 15 cannot wash as a subjective matter.
16 Moreover, this is the Commonwealth of 17 Massachusetts. The Board cannot blind itself to the fact 18 -that it has had a lot of appeals up here and a lot of 19 contentions.
20 They are, in my almost 20 years of experience 21 before this agency now, the greatest contention writers I 22 have ever seen.
23 They write contentions that go on for ten pages 1 24 and they write them off a mere scrap of paper. And te sit 25 here and to try to tell you that that Staff notice wasn't )
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(_/ 1 good enough to frame the-contention they want to frame, I 2- respectfully suggest it cannot wash.
3 As to this materiality question, you were read 4 Appendix E, IV (f) (2) . And my brother just referred gently 5 to IV(f) (1) . That, of course, is the section which makes 6 clear, in my' opinion, that the Commission anticipates 7 exercises as being a prerequisite only to licenses only 8 above five per cent power because that is what they say in 9 Iv(f) (1) .
10 So I think both of those arguments really cannot 11 wesh.
12 Now what I respectfully suggest we have here is a 13 late file technical qualifications contention; nothing more, 14 nothing less. A late filed technical qualifications 15 contention.
16 As I pointed out in my brief on note 45 at pages 17 18 through 19, there once was this contention in this case 18 way back when. There was an onsite emergency planning 19 contention.
20 It was dismissed out of the case back in 1986 with 21 the party that brought it and no one has sought to raise it 22 again until this last minute effort.
23 JUDGE ROSENTHAL: Why was it dismissed?
24 MR. DIGNAN: It went because the party that had 25 brought it up was a party -- and you are now testing my Heritage Reporting Corporation (202) 628-4888 '
y.- -
? 37 memory -- but I know the initials were CCCCH.
I'J) u- 1 2 And I just simply cannot put all the Cs together, l
3 but it was an Intervenor group that was in. They filed some j 1
4 contentions. They did not obey Licensing Board orders, j 5 They were dismissed out. With them went their contentions.
6 No one attempted to hold any of those contentions. And 7 there was no appeal taken from the dismissal.
8 This is referenced, as I say, at pages 18 and 19 9 in note 45. It was dismissed out, Your Honor, in a reported 10 decision as a matter of fact, appearing at 17 NRC 586.
11 JUDGE ROSENTHAL: Even if an exercise was not 12 required prior to low power authorization, the fact is that 13 there was an exercise. And the additional fact is that that I'\ 14 exercise, at least in the view of the Commonwealth, V
15 reflected sone serious deficiencies.
16 Now why aren't they entitled to put a contention 17 in calling attention to these deficiencies even if the 18 deficiencies arose in their mind from an exercise which was 19 not required but which was held.
20 MR. DIGNAN: They are entitled to put it in, Your 21 Honor, if as and when they meet the late filing criteria and 22 in this case, given the procedural setting of this case, 23 they meet the reopening of the record criteria.
24 And that is what our brief basically says. They 25 didn't meet either one of those. I am not saying you can't
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(-) 1 file a late filed contention. j 2 JUDGE ROSENTHAL: Let's take first, if I might, l I
3 the five-factor lateness tert. All right. Even if one 4 assumes that they lose on factor No. 1, you can see that 5 they prevail on 2 and 4 even though you say those: are minor 6 factors. Why don't they also prevail on 3? And in that 7 circumstance, on u balancing they win on 2, 3 and 4. They 8 may lose on 1 and 5 but on the balancing they come in.
9 What is wrong with that analysis?
10 MR. DIGNAN: I don't think they complied with 3.
11 Now the answer they are giving you is that was a much too 12 strict reading by the Board below because what the Board 13 should have done is gone to the affidavit of this witness.
r~3 Apparently realized that this witness was going to (y 14 15 be the witness, keeping in mind that witness has never 16 appeared in Seabrook on the witness stand. I mean he 17 supplied affidavits a lot, but he has never come forth.
18 And then from that affidavit, do their job under 19 factor 3. It is clear the Licensing Board said they were j 20 not going to do it.
21 Now if this Appeal Board is going to say that the )
i 22 Licensing Board had a duty to discern from the affidavit j 23 that this was probably the witness and that was the 24 testimony, I would have to concede the point at that point, 25 Your Honor.
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o, 39' li JUDGE ROSENTHAL:- Didn't they.have the obligation-
=2' 'to' read the affidavit?
-3' MR. DIGNAN: Yes.
4' JUDGE ROSENTHAL: .I thought the Board said they ;
5 were not going to read it. And frankly _I am mystified as to 6 what possible justification there might have been for the 7 Board's refusal to read it.
8 MR. DIGNAN: I-don't know that they.said they 9 ." refused" to read it.
10 JUDGE.ROSENTHAL: But they said they hadn't read 11 it and they weren't going to read it, whatever.
12 MR. DIGNAN: In order to decide this factor.
13 And I think that they would be justified in doing 14 so. Now I want to be very candid. If'in the judgment'of 15- -the Appeal Board Judges the Licensing Board should have-said 16 well look, as a practical matter maybe they didn't dot the 17 Is and cross the Ts in the motion but they should have gone L
18 over and read that affidavit and discerned this was the
'19 testimony.
20- Then at that point I would have to concede to you 21 they probably have met factor 3 in the sense of the 22 formalities of it.
- 23. Now, the Licensing Board was unwilling to do that l
! 24 and I think you should uphold that. I think you should I
25 uphold it for one simple reason. We are not dealing here l
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'(m) 1 with some underfunded Intervenor group with people who are 2 supposedly unfamiliar with the ins and outs of litigation 3 and I am the first lawyer to come up here and concede that 4 one.
5 I am dealing with the Commonwealth of 6 Massachusetts, the eagle, the flag and everything that goes 7 with it.
8 They aren't understaffed. They are experienced 9 lawyers. And if they don't do their job in a pleading, the 10 result has got to be the same thing it is in the Superior 11 Court of the Commonwealth: you lose.
12 JUDGE MOORE: Are you advocating that we accept 13 form over substance?
MR. DIGNAN: Yes. In this particular case, Your
( ) 14 15 Honor, I am precisely doing that, that you should accept --
16 if you believe it is form over substance.
17 Now for purposes of argument, I au conceding to 18 the Chairman that if the Appeal Board looks at that 19 affidavit, gets the result the Commonwealth desires, I have 20 to concede the procedural point.
21 But assuming that is, I am asking you to go to 22 form over substance. And I don't think that is wrong, i
23 because whether we like it or not -- and everybody has heard 24 me publicly on this -- I don't. It is a lawyer's game we 25 are in here.
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(_) 1 .TUDGE MOORE: All right, Mr. Dignan, if it is a 2 lawyer's game we are in, why isn't it reversible on the fact 3 that the Licensing Board ruled in the teeth of Perry and it 4 had to decide that motiong the original reopening motion on 5 tue basis of the moving papere that were in front of it and 6 the Licensing Board erred by asking for further affidavits 7 and farther filings to determine whether or not there was a 8 safety significance in here.
9 MR. DIGNAN: In the first place, the Licensing 10 Board in my view and since Vermont Yankee it has been clear 11 that the reopening of a record is a matter committed to the 12 discretion of the Bcard in the first instance.
13 I do not think Perry can be read as limiting a
(_) 14 Licensing Board from seeking more information if it is in a 1
15 quandary as to whether it faces a significant safety or 16 environmental issue. l 17 JUDGE ROSENTHAL: Mr. Dignan, you are hitting a 18 very raw nerve in my case. I thought in Perry, as did my 19 colleague Mr. Wilber, as did the third member of the Board j 20 who I think was Dr. Johnson, that in order to pass an 21 informed judgment on whether there was a significant safety 22 issue raised by that movant, we had to get further 23 information, which we wanted to get in the form of a mini- l 24 hearing.
25 And we were slapped down hard by the Commission (3/
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() 1 who told us you had to do it on the basis of the initial 2 - papera. the initial papers before ue.
3' MR. DIGNAN: But the " papers" before it. My I 4 recollection of Perry is -- and if I am in error I am sure I
{
5 will be corrected -- is that the fact is what you wanted was ]
6 a mini-hearing.
7 JUDGE ROSENTHAL: Oh, I don't think -- yes, we 8 wanted a mini-hearing but I don't recall the Commission 9 having drawn a distinction between seeking addition:1
- 3. 0 information in a mini-hearing and seeking additional 11 information by calling tor additional papers.
12 MR. DIGNAN: In Perry there is one fundamental 13 distinction also that cannot be overlocked. In Perry, the Commission was looking at the AppeaJ Board's review of C) 14 15 Licensing Board action. And it could well be that you could 16 say to the United States Court of Appeals " don't you go 17 taking affidavits".
18 JUDGE ROSENTHAL: Good try, Mr. Dignan, but I 19 don't think they drew a distinction between the Appeal Board 20 and the Licensing Board.
21 What they said flat out was you have a motion to 22 reopen a record and you have responses to it and you cannot 23 go forward and get additional information. Whether it is a 24 Licensing Board or whether it is an Anpeal Board, you have 25 got to decide it on the basis of those papers.
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() 1- MR. DIGNAN: Okay. Believe me, I am like my 2 learned-friend over there. When I am told there is a t -
3 feeling behind the Bench "let's get off Perry",.the my p
4 answer has to be to Judge Moore that had they decided on.the 5- moving papers, the Commonwealth would have lost.
1 6 If anything, what this did was give the 7 ' Commonwealth a chance, a second shot at putting their case 8 together. As the case came in front of them, it came on the 9 Commonwealth's affidavit and it came on the original 10 affidavits, which we filed, and the Staff's original filing.
11 And they just did not make it on a fundamental 12 flaw basis. They didn't make it on the reopen the record 13 basis. clearly with that first filing.
If anything, the first filing benefitted the
( ) 14 15 Commonwealth. Did it benefit me, too? Yes, I will concede 16 it probably benefitted me, too, because it gave me an 17 opportunity to absolutely outline to the Board where the 18 second inspection report backed up the position my affianta 19 had taken.
20 But it also gave the Commonwealth a chance to 21 buttress what was a very weak filing on the five factors.
22 JUDGE MOORE: At that point, all they had was the 23 Staff investigative report.
24 MR. DIGNAN: That's correct. They didn't' have 25 Staff No. 2. They had Staff No. 1. They had our affidavits "t's Heritage Reporting Corporation V
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( 1 ' explaining it. ,
'2 JUDGE MOORE: Well, they had your affidavit 3 essentially contradicting it on each one of those critical 4 factc2s.
5 MR. DIGNAN: No, this is important because I don't
'6 think we should look at it as we were contradicting the 7 Staff. What we were saying was and what turned out the 8 Staff agreed with, was the Staff inspecij on report had been 9 put dow'n in a situation where the Staff did not have all the 10 information before it.
11 That is whr.t our affidavits did. And this, I 12 think, they certainly could look at those affidavits.
13 JUDGE MOORE: On that basis alone, how could you
/
( 14 prevail without the Licensing Board accepting your version 15 of the facts as opposed to accepting the version of the 16 facts supported by that Staff report. I 17 MR. DIGNAN: You are being urged to be told thtt 18 to decide on the papers means you must take it as though it 19 was pleadings only and look at it and use essentially I 20 guess what is an old demurrer rule. In other words, if a 21 case is stated, you can't dismiss.
22 I have never understood a motion to reopen to be 23 in that category. And I happen to have had tha privilege or 24 lack thereof to argue the first case before the Appeal Panel 25 wb. o the motion to reopen rules got set as a matter of 1
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45 I' common lae before they got codified in the rules.
-L) l' 2 And there was no doubt in that case, and as I 3- understood the rule,-that what the purposes of the 4 affidavits, because we were dealing with a matter in a 5 Licensing Board's discretion as a matter of fact, was to 6- permit the Licensing Board to have before it affidavits that 7 would tell it whether in substance, whether or not in 8 substance it had a significant safety issue.
9 We aren't at the contention type level, the 10 demurrer type level. It is, if you will, a mini summary 11 judgment type proceeding because the Licensing Board is not 12 to blind it and if they got competent affidavits that 13 convince say the technical members that look, this is a
'N 14 know-nothing issue, they can deny a motion to reopen on that (O
15 basis.
16 And that is the purpose of the affidavit filing.
17 Because otherwise there would be no need for the affidavit 18 filing. It would just be a rerun of contentions.
19 JUDGE ROSENTHAL: Do they have to determine 1
20 whether there is a genuine issue of material fact? Is that 21 what it comes down to?
22 MR. DIGNAN: Mr. Chairman, certainly if they l 23 determine there is no material issue, a genuiue issue of l
{
24 material fact, that is the end of it.
25 I maintain they could say, if we look at this as
() Heritage Reporting (202) 628-4888 Corporation
46 4 strictly summary disposition and as lawyers, we see two
()I 2 contending affidavits. And that creates an issue of fact.
3 Well, I suppose in the last analysis of what their 4 judgment was -- look, this affidavit may be there and all 5 that but it is hokey; it just doesn't hold up under the law i I
6 of physics -- then they would have determined it is not a i 1
7 genuine issue. So I guess the standard does come down to a 8 genuine issue of material fact.
9 JUDGE MOORE: And then does the same thing hold 10 true in summary disposition that once credibility comes into 11 it you cannot decide it on the affidavits? =
12 MR. DIGNAN: Well, I2 member what I said. It is 13 hokey not because of credibility. Obviously you cannot do a full credibility analysis in the usual sense without hearing
( } 14 15 and seeing the witness.
16 What I am talking about is I think if an affidavit 17 comes in and competent technical mcmbers of the Board, for 18 example, look at it and say this just doesn't square with 19 the laws of physics, Gentlemen -- to his colleagues or 20 Ladies -- it just doesn't; you know, A + B can't equal C on 21 this earth, I think they can pitch it.
22 JUDGE MOORE: We are not dealing with that here, 23 though.
24 MR. DIGNAN: No, we are not. But what we are 25 dealing with is a situation where if you go on the original
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() l' moving papers, they said here is -- let's get in focus what 2 confronted the Licensing Board.
3 Here is a staff section report that has a general 4 . finding that everything is fine and the public is adequately 5 protected. We have found weaknesses and we picked out four 6 we of the weaknesses.
7 And on that basis, here is our guy to tell you 8 that this is all real important stuff and so forth. We come 9 in with a set of affidavits _that essentially -- and I admit 10 to simplifying somewhat -- essentially came in and said 11 look, here is what all of the facts are.
12 Yes, we know the Staff said that. Had they known, 13 far example, the exercise controller had instructed them that-they had to disregard that relesce rate in order to
( ) 14 15 make the exercise go, had they known this, that and the 16 other thing, they would not have come out that way.
17 And I think those affidavits held together all by 18 themselves -- we will never know what the Licensing Board 19 would have done on that, I agree. But I think you can read 20 them and I think it holds together all by itself against 21 this prior filing of theirs and they could have decided yes, 22 the motion to reopen does not raise a significant safety 23 issue.
24 Now finally on this matter, because I don't want 25 to lose sight of it, part of that filing had to be make it
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(~'s 1 on a late filed contention.
91 2 So again, if it was error to have asked for the 3 second set of affidavits, it seems to me the Licensing Board 4 was clearly correct on its ruling on whether this was a 5 proper late filed contention under the five factors test and 6 under a reopening test, also.
7 So I don't think if it be that Perry dictates they 8 should not have asked for that second set of affidavits and 9 you are forced to disregard them on this appeal, I still 10 think the result is the same.
11 JUDGE MOORE: Well, was there any objection to 12 that blow by you or anybody?
13 MR. DIGNAN: No, by nobody. And I would like to r g 14 sit here and say hoy, was I --
L) 15 JUDGE MOORE: At this point arguably it becomes 16 harmless error thea.
17 MR. DIGNAN: Well, certainly I would like to say I 18 was a brilliant tactician and deliberately didn't object or 19 something like that. But the fact of the matter is I didn't 20 think of objecting. I don't think anybody else did either.
21 And I think, you know, if somebody is going to 22 pitch on Perry, they waived it.
23 JUDGE MOORE: Well, all of this was started by my 24 question of whether you were advocating form over 7ubstance 25 and you are saying yes.
(')
\'
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V 1 Now you are backing off.
2 MR. DIGNAN: No, because form over substance -- as 3 I say, I have conceded to you if Perry means they shouldn't 4 have taken those second affidavits, wipe them oct, take the 5 first affidavits, it is harmless error.
6 The first set of filings simply did not make it 7 under the rules.
8 JUDGE ROSENTHAL: Taking these deficiencies that 9 the first report pointed to and let's assume that those were ;
10 not rebutted by the Applicants, would they amount to a 11 fundamental flaw?
12 MR. DIGNAN: In my judgment they would not. I 13 agree and I have been here long enough to know I am setting 1
14 myself up for a question coming back on this, but I do agree
(~
N 15 with the position taken I guess it was first by Judge Moore 16 that essentially a training issue simply cannot be a 17 fundamental flaw in the plan.
18 Indeed, when you say the problem developed out of 19 training, you are essentially saying the plan was okay but 20 these guys just didn't execute it correctly. But you are 21 not talking about a fundamental flaw in the plan. I 22 JUDGE MOORE: Well, it could.
23 MR. DIGNAN: As I say, Your Honor, there is one 24 place it could but I don't think they made it here.
25 JUDGE MOORE: Well, if the plan says Group X goes 1
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50 d IE 1. to'A andLthen'goes to B~and the training is that Group Y~
2 goes-to C and B, then obviously the training is not in 3 .conformityfwith.the plan and it may well.be that the
!. 4 training.is right and the plan is wrong.
5 MR. DIGNAN: Well, I was going to say -- maybe I
- 6. didn't follow that. What you could have is the part of the
.7 plan that calls for training -- that ise.the part of the 8 plan which says here is how you train your people -- that 9 could be flawed.
10 But that io not Ahat we are talking about here.
11 Because to have made that contention, you have to be making 12 it over on another aspect of the whole plan. And indeed-13 there is a contention with respect to the SPMC which is now being litigated that the training modules and the training
( )14 15 process for the SPMC isn't good. There was one of those.
16 also I believe litigated out on the New Hampshire side of 17 the case.
'18. But if this was a contention, that the training 19 . phase of the plan was bad, boy, they really hid it well .
20 because that never occurred to me from a reading of it.
21 JUDGE ROSENTHAL: Your 20 minutes are up, Mr.
22 Dignan.
23 MR. DIGNAN: Thank you, Your Honor.
- 24 Do you have a question?
25 JUDGE WILBER: Yes, I have one quick question.
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51 L.-g I N,4 1 In the inspection report that was attached to the f 2 motion with the contention, there was one sentence in there 3 that says the Licensee conducted an adequate self-critique 4 of the exercise and also identified these areas, which are 5 .the same four areas, I believe.
6 My question is: if these areas were so wrong, how 7 did you people identify them in your critique?
8 MR. DIGNAN: Your Honor, you catch me in a 9 position of being unable to respond to your question. I 10 know the sentence. I know that our people critiqued it and 11 I know that they were on top of it because when I got the 12 inspection report, before I got the contention or anything, 13 they started the explanation to me of what had happened.
I frankly was not at the critique and 1 don't know l
( )14 25 how it developed. I do know that these people are very good 16 self-critiquers. I have technical people here and if I 17- could have permission to ask question of them I could 18 properly address it.
19 JUDGE WILBER: My question is how could they have 20 identified these things if they were nonexistent? I think 21 two of the four items were nonexistent.
22 MR. DIGNAN: You are hearing the Staff's statement l 23 of what we did. -
24 JUDGE WILBER: The Staff is going to hear the same 25 question. l l
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52 I think the Staff has got the same
}'1 MR. DIGNAN:
l 2 answers that we gave in the affidavits. I think the Staff's l
3: phraseology is their own of what that meant, because I know- )
4 of no basis on which anyone can say that our technical 5 people took any position, with the Staff or otherwise, other 6 .than the position you see in these affidavits.
7 For lack of a better word, the Staff was wrong-on 8 the first assessment.
9 That Staff phraseology, I will apologize profusely 10 if it turns out that I was wrong on my assessment that my 11 people somehow did take a'different position than that. But 12 if they did, I certainly don't know about it and I am going 13 to double-check it right back there and if I am wrong, you 14 will hear me.
15 JUDGE MOORE: If the regulations do not require 16 any exercise for lou power operation, what happens to this 17 contention?
18 MR. DIGNAN: This contention is dead.
19 JUDGE MOORE: On what basis?
20 MR. DIGNAN: On the basis that if you treat it as 21 an exercise contention, it doesn't raise a fundamental flaw.
1 22 If you treat it as what I think it ought to be, a late-filed 23 training contention, they just didn't make it.
24 JUDGE MOORE: But if the regulations require no 25 exercise --
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'q)x - 1 MR. DIGNAN: That's right.
2 JUDGE MOORE: --and you are entitled to a low l
3 power license on the basis of the plans --
4 MR. DIGNAN: Then the contention, if it had been 5 filed'in due course and due order, still would be excluded 6 on the basis that it is not required -- that the regulations 7 don't require the exercise.
8 JUDGE ROSENTHAL: But even if it doesn't require 9 the exercise, if there is an exercise and if the exercise 10 reveals some fundamental deficiency, why can't that 11 deficiency be' litigated?
12 MR. DIGNAN: Well, that is the question. I am 13 saying it can't be litigated. Let's be clear in what I am saying. If any exercise reveals flaws in the planning in
( )14 15 the life of the plan, a 2206 presumably can be filed to the 16' Staff and the Staff is going to do it.
17 It doesn't mean it has to be litigated somewhere.
18 You know, we lawyers forget that many decisions in the world 19 get made affecting health and safety without litigation, 20 hard as it is to believe at times.
21 (Laughter) 22 JUDGE ROSENTHAL: I find that extraordinarily 23 difficult to believe in the context of the Seabrook Nuclear 24 Station, most particularly.
25 (Laughter)
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) 1 MR. DIGNAN: My wife would be very upset to hear 2 me say that as she plans her. budget for next. year.- But the.
- 3. fact'of the-matter is that I'think the~ answer becomes had 4; this exercise been held -- I mean it was held. Had this
- 5. exercise revealed a true flaw, I'would be before you arguing 6 that'it was a question for 2206 to the' Staff for the Staff 7 to deal with.
8 JUDGE MOORE: Mr. Dignan, would this contention 9' have been admissible had it been filed with the Smith Board 10 as an exercise contention?
11 MR. DIGNAN: I don't.believe so, I think for the 12 same reasons I have argued.
13 JUDGE MOORE: Timeliness then would.not have 14 played a'part? Or assume for the moment that there was only
. \(
15 one Board.
H16 MR. DIGNAN: If'it had been filed with the Smith 17 Board, it probably would have had a better chance of making 38 it because the timeliness factor probably would not have.
19 been argued.
20 I would still have made an argument, if I had
-21 thought.of it at the time at least, I would have made an 22 argument to the Smith Board similar to the one I am making 23 to you, which is that you don't require an exercise for low l
24 power.
25 And if what they are trying to do is bring the low Heritage Reporting Corporation L
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\ ,1 1 power license over to this Board, I don't think you've got 2 any jurisdiction over it either.
3 JUDGE MOORE: But assume for the moment that there 4 is just one proceeding because when you have multiple 5 Boards, that is the way you have to analyze it.
6 MR. DIGNAN: It did. It did. And if it was one 7 Board sitting there and there was never this split between 8 on and offsite jurisdiction and there was one thing atising 9 out of the exercise, then I think they could have had the 10 question litigated of whether our people were properly 11 trained onsite.
12 I don't think they could have held up the low 13 power license over it. And this is why I say in my brief, and I don't mean to be too pejorative on this, they made a
(])14 15 tactical decision here because what they were going after 16 was the low power license and they squeezed the thing over 17 there to try to stop the low power license.
18 What I am arguing back to you -- I agree in part 19 Judge Moore's forum, his procedure -- I am saying they took 20 a tactical shot and they missed.
21 JUDGE ROSENTHAL: Okay. Thank you, Mr. Dignan.
i 22 Mr. Berry?
23 t
24 25
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56 i' .' 1 ORAL ARGUMENT ON BEHALF OF THE NRC STAFF, 2 PRESENTED BY MR. BERRY:
3 4 MR. BERRY: Good afternoon.
5 MR. DIGNAN: I conferred with my technical staff.
6 The representation to you is correct in terms of the uniform 7 pcsition that they took.
8 MR. BERRY: Good aftarnoon, Your Honors.
9 I am Gregory Berry. I am happy to be back before 10 you again and representing the NRC Staff.
11 The Staff's position is that the Licensing Board 12 order should be affirmed. And quite simply put, Your Honor, 13 the contention was untimely. The contention was a late I'\14 G
contention.
15 We've heard from Mr. Trafi onte. We have heard 16 from the Applicants. Thi matter has been explored fully in 17 all the briefing on this.
18 The fact is, the Staff inspection report was made 19 available to the Interveners in July of 1988. That 20 inspection report forms the basis for the contention.
21 That inspection report is what the Attorney 22 General's affiant draws upon in its affidavit. It is what 23 they raised in the contention.
24 JUDGE ROSENTHAL: Mr. Berry, Mr. Traficonte told 25 us a while back that without further information it was not
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T)1 possible for the Attorney General to meet the burden of _
~2 showing why this might have constituted a fundamental flaw.
L
- 3. MR. BERRY: I believe the responded fully in
<4 response to Mr. Traficonte.
-5 JUDGE ROSENTHAL: What is your response to that?
6 MR. BERRY: I agree with the sentiment expressed 7 by the Board. The fact is.the additional time wasn't 8 necessary to draft or plead on the contention.
9 JUDGE ROSENTHAL: What specifically was the 10 additional information that was made available to the 11 Commonwealth and the other Interveners?
12 MR. BERRY: Well, we have heard from the 13 Interveners and the Commonwealth that it was made available to them. They received something called the exercise
( )14 15 scenario. I 16 But --
17 JUDGE ROSENTHAL: You don't think there was 18 anything in that scenario that would have assisted them in 19 giving shape to their contention that the exercise 20 demonstrated a fundamental flaw?
21 MR. BERRY: Oh most certainly, Your Honor. The 22 more information a person has, the better position they are ,
23 going to be in to take a position and file a response or do 24 anything.
25 The fact is: did they have enough in July of
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'(~T 1 1988? That is the crucial issue here. In July of 1988, 1
%) '
2 they had the Staff inspection report identifying the, quote 3 " exercise weaknesses" in the exercise.
4 That was the report that formed the basis for this i 5 contention. In August, when they state they received the 6 exercise documentation and their scenario and other 7 information, all you have to do is look at their contention 8 and see how important, how useful that was.
9 I don't doubt that it would be helpful to have 10 additional information. But I think the important 11 consideration here, the gravamen of the master, is did they 12 have enough in July of 1988.
13 I think it is clear that they did.
,e 14 JUDGE MOORE: At this point, if we wanted to look
( at that document, is that document in the record, the eight-15 16 volume or seven-volume exercise scenario?
17 MR. BERRY: I believe it is in the administrative 18 record but it is not in the evidentiary record, not in the 19 offsite portion of th' case.
20 JUDGE MOORE: How would we test the assertions of 21 the Attorney General that this was absolutely vital to be 22 able to determine without being able to look at that 23 document?
24 MR. BERRY: I believe it is difficult for you to 25 do that but I would point out that one way it could have
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I 59 j )' 1 been done is for the Interveners to have attached the 2 relevant portions of the documents to their contention.
3 And it would have been made plain what it was that 4 was so esse"icial to them that prevented them from filing 5 this contention six weeks earlier toward the latter part of
'6 July.
7 Your Honor, I have not read the eight-page, the 8 eight-volume document. I don't know that anyone else has.
9 But I agree with Mr. Dignan here --
10 JUDGE HOORE: You mean you are arguing that he 11 can't possibly be right without ever looking at the document 12 you are saying he doesn't need?
13 MR. BERRY: I am saying, Your Honor, that in July
- 14 of 1988 when we received the Staff inspection report, the 15 inspection report that detailed the five instances of 16 engineering, poor engineering judgment, that that was fully 37 and adequately documented in that inspection report that was 18 available to them. !
19 As you pointed out earlier in response to an 20 answer from Mr. Traficonte, that when you have an exercise, 21 the purpose of an exercise is to determine whether the 22 operators are capable of taking actions necessary to 23 mitigate an accident and bring the plant to a safe shutdown.
24 I mean that is the point of it. I think it is, as 25 you stated, self-evident. It is apparent. And in l
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'() 1 particular then they had the Staff inspection report that 2 identified certain claimed weaknesses in that exercise or in 3 that ability to make the proper judgments and things, and
[ 4 that was the basis for the contention.
5 Now if there is something in these other 6 documents, I think this Board, the Licensing Board,.the 7 Staff, the Applicants and any other parties is entitled to 8 know what it is, what was it that was so crucial, that was-9 so important, that was so essential that the Interveners had 10 to wait an additional six weeks before they brought forward 11 this contention.
12 I don't know what it is and I have not heard 13 anything here today.
JUDGE MOORE: If I ask you now, and I will, that
(}14 15 in an exercise that your people failed to question the 16 release of greater than 7000 Curies per second, was only 17 clad " damage" and no core uncovery, would that suggest to 18 you that the operators or the personnel involved were poorly 19 trained?
20 MR. BERRY: I think if I were an Intervener and I 21 had that information --
22 JUDGE MOORE: Because it certainly does not 23 suggest that to me.
24 MR. BERRY: That is certainly one of the possible 25 explanations for it, you know, one of the possible bases for
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2 And if I were an Intervenor and I had that 3 information, I certainly could allege that. You know, the 4 fact is, Your Honor, they had the exercise documentation.
5 They received it and they reviewed it before they filed the 6 contention.
7 And we still don't know what it is that was so 8 compelling, so essential, so crucial that.this contention 9 couldn't have been filed six weeks earlier.
10 I don't think we should lose sight of that fact, 11 Your Honor. That is the Staff's view and the Staff has 12 taken this position since the inception. The important 13 dispositive --
14 JUDGE ROSENTHAL: When you say " dispositive", it 15 certainly isn't dispositive, is it, in the determination as 16 to whether to admit the late contention? That is a five-17 factor analysis of which lateness without just cause is but 18 one of the factors.
19 MR. BERRY: You are right, Your Hanor.
20 JUDCE ROSENTHAL: So the lateness itself can't be t-21 dispositive, can it?
22 MR. BERRY: No. And if the Board understood me to 23 suggest that, I apologize. That is not what I meant.
24 JUDGE ROSENTHAL: Well, what about the other 25 factors.
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(,)j 1 MR. BERRY: I will explain what I mean.
2 JUDGE ROSENTHAL: What about the other factors?
3- MR. BERRY: The Commission stated that when an 1 1
l 4 Intervenor fails to satisfy or to prevail on the first 5 factor, the good cause for filing late, it has a 6 responsibility or burden of making a compelling showing on 7 he remaining factors.
8 Now let's look at the remaining factors. Factors I
9 2 and 4 generally they weigh in their favor in this case as i 10 they usually do in the favor of an Intervenor. Factors 3 11 and 5 are left.
12 Factor 5 clearly weighs against them and that 13 leaves the third factor, the ability to contribute toward the development of a solid record,
( )14 i 15 Now there is, the Staff would agree -- it is not 16 clear cut one way or the other on that. We happen to 17 believe that the Licensing Board was not clearly wrong in 18 its determination.
19 But even if it were, even if this Board were to 20 conclude that the Licensing Board should have weighed the 21 third factor in the Intervenor's favor, on balance you still 22 would not have the compelling showing required to overcome 23 the failure to meet the first factor; that balancing the 24 five lateness factors weigh against admission of the 25 contention.
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63 That would still be correct and the Staff would f~TQ) 1 2 still be here urging you to affirm that determination even 3 were this Board to conclude that the Licensing Board should 4 have weighed the third factor in the Intervenor's favor.
5 JUDGE MOORE: Is it your position that the time 6 between when they received the exercise scenario documents 7 and the filing of the contention in any event was too great 8 an interval?
9 MR. BERRY: My position is that by July 15th they 10 had the inspection report. I believe, we believe, that that 11 report in itself would have been sufficient to formulate a 12 contention.
13 JUDGE ROSENTHAL: You already told us that, Mr.
g- 14 Berry. It was a different quest an that you were asked and V
15 please address yourself to Mr. Moore's question.
16 MR. BERRY: I certainly will endeavor to do that, 17 Your Honor.
18 If I recall the question clearly --
19 JUDGE MOORE: The contention was filed in mid-20 September.
21 MR. BERRY: Yes.
22 JUDGE MOORE: And they received the second set of 23 documents in mid-August. Why is it necessary for another 24 month to elapse after having had the second set of documents 25 to file a contention?
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(~) MR. BERRY:
1 x_/ 1 Well, I don't think it is necessary. j 2 And as I say, having not raviewed the whole eight volumes, ;
3 for all I know it could have taken a month to read the eight 4 volumes. .
5 I don't really think that is really critical here 6 because even if the documents came in the middle of August, 7 the centention still should have been filed two weeks before 8 that.
9 And this would just be another case of where the 10 Commission has stated that an Intervenor has the obligation 11 to bring forth a contention promptly after information 12 sufficient to formulate a contention is available to it.
13 And we submit, the Staff maintains, that that sufficient information was available to the Interveners in
( )14 15 the middle of July o;f 1988, a full month before they had 16 received the supplemental document production, Your Honor.
17 JUDGE ROSENTHAL: If you assume that the third 18 factor inures to the benefit of the Interveners, you are 19 then confronted, are you not, with a situation where you 20 would be conceding that the Interveners could make a 21 substantial contribution to the development of the record.
22 If you further assume, as you would have to, that 23 this was a significant safety issue, because otherwise they 24 couldn't get their foot in the door, you have a situation 25 where they would be making a substantial contribution to the
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( ) l' development of a record on a significant safety issue.
~2 That being so, why wouldn't the balance be struck 3- in favor or admitting the contention?
4 MR. BERRY: Because you added more to my position 5 than I did, Your Honor.
6 What I stated in my position was that had the 7 Li censing Board reviewed the affidavit, attached affidavit, 8 summarized the testimony, stated that well they'have a 9 witness and-the witness appears competent and qualified to 10 testify in the matters alleged in this contention, I think 11 that on balance that will contribute to developing a sound 12 record.
13 The Staff has not ever taken the position that it
/ is a significant safety issue.
)14 15 JUDGE ROSENTHAL: Well, if it is not a significant-16 safety issue,'then we don't have to get to the balancing, do 17- we?
18 If it is not a significant safety issue, it fails 19 on the reopening test, does it not?
20 MR. BERRY: Well, Your Honor, we don't need to get 21 to the reopening test as I stnted, because the contention is 22 so late that it is not going to make the compelling --
23 JUDGE MOORE: Your position is that you cannot 24 apply a reopening test to these Interveners in this 25 situation?
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()1 MR. BERRY: The Staff does not argue that the 2 reopening test is applicable to the Interveners in this 3 proceeding.
I 4 JUDGE ROSENTHAL: So it all goes on the five 5 factors, is that it? If we conclude that on a balancing of 6 the five factors this contention should have been admitted, 7 even though late, then the Licensing Board get reversed, is 8 that true?
9 MR. BERRY: No ,not necessarily, Your Honor.
10 JUDGE ROSENTHAL: Give me the "necessarily".
11 MR. BERRY: Well, it still has to be a fundamental 12 flaw. This contention is rejectable, from the Staff's view, 13 for two main reasons.
One, it doesn't raise a fundamental flaw as i
()14 t
15 defined by this Board in ALAB-903. And secondly, even if 16 it did allege and was well-crafted and it pleaded properly, 17 this contention doesn't meet the five-factor test.
18 JUDGE ROSENTHAL: Let's look at the fundamental 19 flaw for a minute.
20 Why doesn't this satisfy that test?
21 MR. BERRY: Because, Your Honor, as this Board 22 would have gave shape to the Commission's order in Shoreham, 23 it stated that a fundamental flaw is one that reflects the 24 failure of an essential element of the plan --
25 JUDGE ROSENTHAL: Well, isn't training an
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()1 essential element of the plan?
2 MR. BERRY: -- which can be remedied only by a 3 significant revision of the plan. !
I 4 And that is why it doesn't constitute a 5 fundamental flaw under this Board's own definition.
6 JUDGE ROSENTHAL: How do we know whether it can be 7 remedied without an alteration of the plan without having 8 more information than there is now available?
9 MR. BERRY: And how do we know that it is not a 10 failure of the plan without having more information?
11 And I think here that is where this Board is 12 correct in saying that the Interveners, that they have an 13 obligation to not allege merely just results but effects, causes.
( }14 15 And in this case we don't have that. I mean 16 anybody could write a contention, Your Honor, and say well 17 it is the failure of training and the failure is endemic to 18 the plan. We need more than that, YL.r Honor.
19 JUDGE ROSENTHAL: Is there any circumstances in 20 which the disclosure of deficiencies in training could be 21 attributable to some deficiency in the plan whien would !
22 require a revision of the plan? I 23 MR. BERRY: Your Honor, you know how loath I am to 24 speculate.
25 JUDGE ROSENTHAL: I am not asking you to
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( ) 1. speculate. I am asking you whether there are in your 2 judgment instances where a disclosed training failure might 3 require a revision of a plan.
4 MR. BERRY: Well, one example that sounded pretty 5 good to me, I believe, is -- Judge Moore suggested it -- is 6 if they were teaching the wrong thing. Maybe they were, the 7 operators, the employees, were learning what was being 8 taught but what was in the plan, in the training plan for 9 them to be taught, was wrong.
10 JUDGE ROSENTHAL: Is that possible here? Might 11 that have happened here?
12 MR. BERRY: I don't think we have that here.
13 JUDGE ROSENTHAL: Well, you say you don't "think" we have that here.
()14 15 MR. BERRY: I know we don't have that here.
16 JUDGE ROSENTHAL: How do you know that?
17 MR. BERRY: Well, I know because we have seen the 18 inspection reports conducted by the Staff -- I mean prepared ]
19 by the Staff and there are other affidavits and matters in 20 the record.
21 And I discussed this with responsible ca.i 22 appropriate Staff members so I am confident that it is not 23 here.
24 But on the basis here --
25 JUDGE ROSE!2 THAL: Well, we are looking at a record If ) Heritage Reporting Corporation (202) 628-4888
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()1 here that doesn't contain your what I assume are casual 2 conversations with other Staff members.
3 MR. BERRY: Your Honor, this is what I would 4 suggent. I would suggest that we look at the record and ask 5 ourselves is there a fundamental flaw here. Has anything 6 been presented to us that would lead us to believe that 7 there has been a failure of an essential element of the plan 8 which can be remedied only by significant revision of the 9 plan.
10 I would respectfully submit the question is no and 11 I would also submit, Your Honor, that the party who bears 12 the risk or the burden of failing to demonstrate that is the 13 proponent of the contention.
/~T 14 In this case, it is the Interveners. So to the V
15 extent that the record is uncertain whether there is or 16 there'is not a fundamental flaw, I believe that that inures l'. to -- that that does not inure to the benefit of the 18 Interveners.
19 So in either case, and particularly in that case, 20 that is just another reason to affirm the Licensing Board's 21 conclusion which, as I argued, I believe is correct and 22 should be affirmed by this Board.
23 Thank you very much.
24 JUDGE WILBER: Just a moment.
25 I think somewhere in your brief you said it was
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}1 acceptable for the Licensing Board to go back and ask for 2 more'information.
3 How do you square that with the Perry ruling?
4 MR.' BERRY: I don't recall stating that in my
)
5 brief but if you could refresh my recollection or draw my .l 6 attention to it, Ii 7 I don't have a present recollection of doing that. H 8 But to further answer your question -- and I take it the 9 question is whether the Licensing Board acted properly in 10 asking for further briefing on the issue of whether there ]
11 was a significant safety issue.
12 The Staff's views on that are closer to one of the 13 views Mr. Dignan expressed in response to a question by the Chairman. And that is, in Perry there was a mini-hearing
)14 15 there and I think what the Commission was concerned about 16 was opening up a new hearing on receiving evidence.
17 JUDGE ROSENTHAL: So it would have been perfectly 18 all right if we instead of deciding to have a mini-hearing 19 somewhere in Ohio, we had simply called for additional 20 written submissions?
21 You are telling me that the Commission in its 22 Perry decision drew that distinction?
23 MR. BERRY: Well, I am not suggesting that they 24 expressly stated that.
1 25 JUDGE ROSENTHAL: But it was necessary
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()1 implication, is that it?
2 .MR. BERRY: Well, the necessary implication I 3 think in the Perry decision is that the Commission didn't 4 see the need for a live evidentiary hearing to determine 5 whether.a hearing should be held.
6 . JUDGE WILBER: In the Perry case, the Commission 7 relied on Waterford and there was no mini-hearing involved 8 in Waterford, 9 So how does this square with Waterford then?
10 MR. BERRY: It has been some time since I read the 11 Waterford case there. But let me just say this and finally 12 on this subject.
13 I know our rules state that a person that files a motion, they are entitled to attach to that motion or
( )14 15 support that motion rith evidence -- affidavits, any other 16 documents they want to rely upon. A motion can be responded 17 to.
18 And the opponent of the motion under the rules is 19 -
entitled to submit or attach affidavits or other documents 20 and other evidentiary materials.
21 Now I don't know why, Your Honor, the regulation 22 would contemplate allowing parties to file evidentiary 23' materials to a Licensing Loard or a presiding officer if it 24 didn't expect that presiding officer to review those matter 25 and take them into consideration.
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()1 So I really don't have a clear answer to the 2 question. I think it is an interesting question but in 3 this cass I really think it is somewhat academic because the 4 Licensing Board correctly decided that a balancing of the 5 five factors did not weigh in favor of this contention and
} 6 correctly determined that it should not be admitted.
7 I think that decision was correct. The Staff 8 thinks that decision is correct and we respectfully urge 9 this Board to confirm it.
10 Thank you.
11 JUDGE ROSENTHAL: Thank you Mr. Berry.
12 All right, Mr. Traficonte. We will give you the 13 fifteen minutes. You, of course, recall that what you are up for is rebuttal, which means that you cannot introduce
('\\sl14 15 any new points. You have to simply respond to points that 16 have been made during your opponents' presentation.
17 JUDGE MOORE: Since we don't have those seven 18 volumes and you haven't supplied any portion of them, how 19 are we to test your assertion?
20 21 REBUTTAL ARGUMENT PRESENTED ON BEHALF OF THE 22 COMMONWEALTH OF MASSACHUSETTS BY MR. TRAFICONTE:
23 24 MR. TRAFICONTE: That was going to be ny first 25 point.
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1/*T 1 In fact, at page 8 of the opinion, the lower Board
.Q' 2 makes'teference to the section that it' read after requesting l 3l from us, the Interveners, a copy of relevant portions of-the 4 scenario document.
.5 At page 8 of the~ lower Board's opinion, they make-6 reference to the objectives section and the scenario 7 sections which I believe as.a matter.of fact Mr. Dignan 8- provided, which were provided to the Board prior to the 9 decision.
10 We could do the same again.
11 JUDGE MOORE: They are in the record then?
12 MR. TRAFICONTE: Well, the distinction between the 13 administrative record and the evidentiary. record is too 14 subtle for me.
15 Let me say that the three Judges that ruled, read 16 them. And their decision references the relevant sections.
17 And if we are talking about needing a copy, we could 18 certainly provide a copy.
19 JUDGE MOORE: Well, they are already in the docket 20 somewhere if they were supplied.
21 MR' TRAFICONTE:
. They were supplied.
- 22. JUDGE MOORE: And then I assume served.
23 JUDGE ROSENTHAL: What do you have to say in 24 response to Mr. Dignan's point that ALAB-903, which gave 25 shape to this fundamental flaw concept, didn't come down Heritage Reporting Corporation
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}1 2 motion so that you couldn't have been waiting to see whether 3 you got documentation that would enable you to meet the 903 4 standard?
5 MR. TRAFICONTE: We never alleged that we were 6 waiting to make sure that we could meet the standard as 7 enunciated in 903. j 8 What we were waiting to nake sure we could meet 9- was the fundamental flaw standard which' pre-existed that by 10 some two years.
11 JUDGE ROSENTHAL: As you understood it, what was 12 the fundamental flaw standard? What was its content at the 13 time that you were waiting, as it were?
.< ~ 14 MR. TRAFICONTE: Well, what we understood we
(- 15 needed to allege, and recall that at the same time frame we 16 were also preparing contentions in the offsite phase which 17 were due September 21.
18 What we believed then existing case law indicated 19 was that you had to link exercise results, personnel 20 performance if you will, to exercise objectives and that the 21 objectives that you linked it to themselves had to be 22 connected to reasonable assurance.
23 JUDGE ROSENTHAL: And 'fou are telling me that when 24 you read the Staff's inspection report that you couldn't 25 determine whether those asserted deficiencies might have
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D? 1. been in conflict with the objectives?
2 MR. TRAFICONTE: Your Honor,-in the form of 3 rebuttal, I pointed out that we did not have the objectives
'4 that were being tested. I will stand by the argument -- I 5 think it is a very solid one -- that we needed the 6 objectives in order to make out our --
7 JUDGE ROSENTHAL: In order to tell whether there 8 was some kind of training deficiencies reflected by those 9 particular things that the Staff took note of?
10 MR. TRAFICONTE: Your Honor, if memory serves me, 11 there are 36 or 37 identified objectives that the NRC Staff 12 uses. They range across the lot.
13- If one of the objectives turned out not to be to assess, appropriately diagnose and recommend the appropriate
{)14
'15 reactor -- appropriate steps to return the reactor to a 16 safe condition, which is a very loose summary of one of the 17 objectives.
18 If one of the objectives of that exercise was not 19 that, we would not have a contention. Because we believe 20 that the five critical areas identified by the Staff run to 21 that objective. ,
22 And I will defend the proposition that we could
- 23 not have assumed that that was one of the objectives.
24 JUDGE WILBER: Why would that deter you from 25 submitting a contention that it is a failing, a weakness or Corporation
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,/'g 1 whatever you want to call it?
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2 MR. TRAFICONTE: Because our understanding of the )
3 then existing fundamental flaw jurisprudence --
4 JUDGE WILBER: But doesn't Catawba tell you that ]
5 that treatment could have been done subsequent to the 6 submittal of the contention?
7 MR. TRAFICONTE: That has not been our reading of 8 Catawba nor has it been our experience with contention 9 filing.
10 JUDGE WILBER: I am talking about you submit the 11 contention and then, as I recall the words in Catawba, 12 subsequent submittals can temper those contentions one way 13 or the other.
e 14 MR. TRAFICONTF.: Catawba does indicate that.
?
t-15 JUDGE WILBER: Are you asking me or telling me?
16 MR. TRAFICONTE: I was indicating agreement, that l 17 Catawba does indicate that.
18 JUDGE WILBER: All righc.
19 MR. TRAFICONTE: What I would go on to say is it 20 has been our experience learneo at the front lines that if 21 we filed a 'ontention that has a failing in it from a 22 pleading perspective, doesn't make out a fundamental flaw, 23 it is going to be stricken.
24 And it is going to be objected to on the grounds 25 of either a specificity basis or that the fundamental flaw I ,/~T Heritage Reporting Corporation l (/ (202) 628-4888 1
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(_j 1 is not adequately made out.
2 And our argument in response, "give us a little 3 bit more time until we have the appropriate documents to 4 #1esh it out", is not going to carry the day.
5 JUDGE ROSENTHAL: And you had no way of knowing 6 what the objectives of this exercise were until you got that 7 later document, is that right?
8 MR. TRAFICONTE: The objectives for this exercise 9 are contained in the objectives portion of the scenario 10 document.
11 JUDGE ROSENTHAL: They came as a surprise to you?
I 12 It seemed to me that those objectives were self-evident.
13 JUDGE MOORE: And weren't they present -- there were 30-some NRC objectives. Weren't they present from the
()14 15 prion exercises and the prior documents generated from the 16 carlier exercises?
17 MR. TRAFICONTE: I don't believe they are.
18 JUDGE MOORE: Weren't they all publicly available?
19 MR. TRAFICONTE: I don't believe they are. I 20 believe the only thing that will be in the docket and 21 publicly available for past onsite exercises will be the 22 similar NRC Staff inspection reports with their very summary 23 treatment of strengths and weaknesses, et cetera.
24 I don't believe that the documentation that we are 25 talking about was provided in the past. I think it was
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'^' provided in this instance because of the contingent fact V, 1 2 that we were talking about a full participation exercise.
3 FEMA therefore was participating. FEMA therefore 4 prepared this background information document, seven 5 volumes, and as part of that the NRC Staff submitted, in the 6 objectives portion, its objectives for its conduct in 7 handling of the onsite exercise.
8 JUDGE MOORE: You stated earlier that there were 9 earlier exercises on the onsite portion.
10 MR. TRAFICONTE: I did say that.
11 JUDGE MOORE: And those were conducted by the NRC?
12 MR. TRAFICONTE: They were.
13 JUDGE MOORE: And did those not have objectives 14 for the exercise, the earlier one or more exercises that the 15 NRC conducted?
16 MR. TRAFICONTE: You are asking me question of 17 fact that I cannot respond to. I would hypothesize that 18 they did. I would state further that if your point is, "you 19 should have been able to get your hands on those and surmise 20 what the later objectives would have been", I would say 21 without going back now and checking the public document 22 room, I would surmise that the objectives were not indicated 23 because that is not part of the NRC Staff report. It is not 24 part of the SER, although the SER does make reference to 25 these onsite exercises.
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. (,/ 1 JUDGE WILBER: Are these people that are poorly 2 trained in your view, are they part of the emergency 3 organization or are they a separate entity here?
l 4 I am beginning to get a little fuzzy on that.
5 MR. TRAFICONTE: I believe the clearest way of 6 putting it is that there are at least two emergency 7 organizations. One is an onsite licensing response 8 organization and the other is in most cases a state and 9 local governmental response organization. But in the 10 Seabrook case, at least for Massachusetts, it is also a 11 licensee response organization; that there are two such 12 response organizations, if you will. l 13 JUDGE WILBER: But they are all considered !
emergency organization personnel? Is that correct?
( )14 15 MR. TRAFICONTE: Yes, I believe they are. I 16 believe Appendix E when it makes reference to response 17 organizations --
18 JUDGE WILBER: They were referring to these 19 people.
20 MR. TRAFICONTE: --
I believe they were referring 21 to both.
22 JUDGE WILBER: Fine.
23 MR. TRAFICONTE: Now I would like to make a couple 24 more points if I may in the form of rebuttal on materiality.
25 I think it is loosely covered by rebuttal.
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^T 1 I want to draw the Board's attention to what I (O
2 believe is the logical link between materiality of this 3- e::ercise for licensing at 10w power and the late filed 4 contention criteria as well as the motion to reopen.
5 The briefs on this point I think are clear. Our 6 position is that if it is material to the low power license, 7 it cannot be subject to the motion to reopen without 8 contravening --
9 JUDGE ROSENTHAL: I don't understand your 10 responding now to an argument that your opponents were 11 making. That is not rebuttal, Mr. Traficonte.
12 MR. TRAFICONTE: All right.
13 The other point on rebuttal which I believe is r~gl4 more narrowly raised by what my opponents indicated is that U
15 I believe the regulations make clear that an exercise is 16 required.
17 That aside -- ;
18 JUDGE MOORE: Assuming you are wrong on that 19 point, what is left of your position?
20 MR. TRAFICONTE: I was going to move to what is 21 left.
22 Assuming that I am wrong, I believe that -- and 23 here I would say that as a matter of contingent fact there 24 was an exercise. It was a full participation exercise. It 25 included the onsite personnel.
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-(G,) 1 It was reviewed by the NRC Staff. The inspection 2 report which is attached to the contention at the very first 3 page re.erences at the bottom -- these are unnumbered pages, 4 unfortunately -- headed " Result", no violations were 5 identified. Emerget.cy response actions were adequate to 6 provide protective measures for the health and safety.
7 Meaning what? Meaning the Staff made a judgment, 8 reasonable assurance, based on what on an exercise of the 9 onsite Staff.
10 In that situation, it may have been contingent.
11 If not required by the regs for a low power license, then it 12 is a contingent fact that it occurred.
13 But once having occurred, results that would flow from it or disclosures or flaws in the planning and the I}14 15 training that were indicated by it have to be treated as 16 material to the issuance of a low power license.
17 If they are not, the NRC is in the odd posture of 18 conducting an exercise at low power, conducting an exercise 19 of the onsite Staff, which has responsibilities at low 20 power, conducting an exercise, discovering there were 21 defects but ignoring those defects for purposes of issuing a 22 low power license.
23 And that quite frankly is not a --
24 JUDGE MOORE: Why does that follow? All that it 25 is in the posture of is not letting you litigate it.
I O erit ee a gereine career tioa (202) 628-4888 1
h 82 1 MR. TRAFICONTE: Because, Your Honor, I believe l- 2: that if it is material, i.e., if it is material and the NRC 3 is going to review the results of the onsite exercise, treat 4 the.results as material to its future determination to issue 5 a low power license, UCS holds that the public has a right 6 to litigate that exercise.
7 You say we will just simply review it and make our 8 judgment accordingly but we won't let you litigate it.
9 JUDGE MOORE: But if the regulations do not 10 require any exercise for the issuance of a low power license 11 which was your premise for your second statement --
12 MR. TRAFICONTE: Yes.
13 JUDGE MOORE: -- then UCS becomes irrelevant, 14 doesn't it?
15 MR. TRAFICONTE: I believe it doesn't, Your Honor.
16 The question in UCS was --
17 JUDGE MOORE: In UCS you are saying " requires the 18 agency to have an exercise of the onsite plan".
19 MR. TRATICONTE: No, it doesn't.
20 JUDGE MOORE: You are letting the materiality 21 question drive everything else.
22 MR. TRAFICONTE: That I agree with. I believe the 23 materiality question does drive UCS. I believe UCS and the 24 subsequent case in December of ' 84, which we failed to 25 mention in our brief unfortunately, the later DC Circuit
(~}
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()1 . case in December of '84, the Mothers of Peace, discusses the 2 motion to reopen as well.
3 I believe that materiality drives those cases. IF 4 the NRC looks at a matter and considers it material to the 5 issuance of a license, then I think UCS says the public has 6 a hearing as to that material matter, QED essentially.
7 Assuming that this portion of the argument assumes 8 that the regulations don't indicate that there need be an 9 exercise, assume that the regulations don't indicate that 10 there need be an exercise, once there happens to have been 11 an exercise -- and as I already have indicated, there have 12 been a series of them.
13 Once there happens to have been an exercise that predates the issuance of a low power license, if the NRC ic
( }14 15 going to review that exercise, if the Staff is going to make 16 a judgment about it, if reasonable assurance for purposes of 17 low power hangs on it, then it is material to licensing.
18 And as a consequence, UCS says the public has a 19 right to a hearing and a whole series of procedural steps 20 follow -- procedural conclusions follow -- the most 21 important being that we should not be subject to the motion 22 to reopen and the second most important being that this 23 contention is not properly treated as late-filed the minute 24 it came in the door, which is what the lower Board said.
25 JUDGE MOORE: So in effect what you are telling me Beritage Reporting Corporation (202) 628-4888
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()1 is that the UCS case alters the Commission's regulations on 2 whether or not a low power license has to have an exercise, 3 point 1 and 2, it essentially overrules the Commission's R f
4 decision of Catawba.
5 MR. TRAFICONTE: Point 1, I believe that - part 6 of-it is that it is hard for me to argue this because you 7 are making me assune that the regulations don't require.this 8 when I think that *: hey do.
9 Assume that they don't. The problem the NRC has 10 when it conducts an exercise, reviews it and uses those 11 results as input in making a determination to issue a
-12 license, is that whether the regulations technically require 13 that exercise or no, in effect what has occurred is that the
/~l14 NRC has in fact made material that exercise to the issuance V
15 of that license.
16 It just follows essentially as night the day that 17 it is a necessary consequence of using that exercise for 18 purposes of making a finding that you will then rely on in 19 support of issuance of a license.
20 So the fact that we would fail - perhaps by 21 stipulation at least for purposes of the argument -- we fail 22 to find the black letter reg here that requires that an 23 onsite plan be exercised, it follows from the way in which 24 the events --
25 JUDGE MOORE: Okay. Why isn't the Commission's Beritage Reporting Corporation (202) 628-4888
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~N 1 earlier finding in the SER that the onsite plan is fine be (Q
2 the finding that the Commission wants to follow?
3 MR. TRAFICONTE: The answer to that, Your Honor, 4 is that quite frankly I believe that if we pushed in that 5 direction, we would end up with some rather arbitrary and 6 capricious logic.
7 Because what would be happening is that you would 8 make a finding in a prior year and I think the SER was --
-9 JUDGE MOORE: '83.
10 MR. TRAFICONTE: --
'83. You make a finding in
-11 '83 based on a then current exercise. You hold that 12 constant --
13 JUDGE MOORE: '83 wouldn't be any exercise.
14 MR. TRAFICONTE: '85, I believe.
15 JUDGE MOORE: Let's go back to '83 when they 16 looked at the plan and found it fine for a low power license 17 for onsite purposes.
18 MR. TRAFICONTE: '83 when they did so?
19- JUDGE MOORE: Yes.
20 MR. TRAFICONTE: All right.
21 Car view would be a subsequent exercise of that i 22 plan cannot be ignored. It cannot be treated as if it could 23 never impact on that finding. That finding cannot be held l 24 to be constant through time even though there is an exercise i
25 taking place.
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(,) 1 And for example if we stipulate that the Staff 2 after finding these five defects said gee, that doesn't look 3 so good, that has to reach --
4 JUDGE MOORE: Would you answer how UCS doesn't 5 overrule Catawba then? That was my second point. You 6 answered the first point.
7 MR. TRAFICONTE: And now you want me to turn -- I 8 thought perhaps I answered the second one because it may be 9 more difficult.
10 I am going to have to address -- and I want to 11 answer your question directly and it is going to force me to 12 argue the Catawba case again I think in a little bit more 13 detail.
('}14 V
JUDGE ROSENTHAL: I mean if you are going to try 15 to distinguish Catawba again, we've got your distinction in 16 your brief.
17 If that is what you are relying on, your time is 18 basically expired. I want you to answer Judge Moore's 19 question if the answer is something other than what you 20 already have in your brief.
21 JUDGE MOORE: You are not arguing that Catawba is 22 essentially overruled?
23 MR. TRAFICONTE: We are not. We are not.
24 JUDGE ROSENTHAL: You are saying that Catawba is l
l 25 distinguishable for the reasons set forth in your brief, is l
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() 1 that it?
2 MR. TRAFICONTE: We would be distinguishing 3 Catawba in the circumstances that Judge Moore and I are
]
4 discussing because the exercise at issue is material to 5 licensing.
6 And therefore it, as an event, triggers a hearing )
l
.7 right that follows immed.iately thereupon; Catawba therefore 8 not being triggered.
9 JUDGE MOORE: Can you reasonably draw the 10 distinction that it is material to licensing for a full 11 power license,'because the onsite plan has to be fully 12' operational and tested in an exercise for a full power 13 license.
14 Accept the fact that for low power you don't need 15 it at all. Now why doesn't that essentially disembowel your 16 argument?
17 MR. TRAFICONTE: Thst it is required for full 18 power?
19 JUDGE MOORE: For full power. And for the low 20 power decision, the Commission doesn't need to look at it.
21 But for full power purposes, it does.
22 MR. TRAFICONTE: If what you just said is the law 23 and our argument about the contingent fact that it has 24 occurred and will be relied on by Staff and by the ultimate 25 licensing power in the issuance of a low power license, if Heritage Reporting Corporation f)
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()1 what you have just said negates that --
2 JUDGE MOORE: No. It will be relied on for full 3 power, not for low power.
4 MR. TRAFICONTE: Well, if it is held as a matter 5 of law that it does not and will not support the issuance of 6 a low power license, the Applicants -- I almost said the 7 Staff although they agree with us on this point -- the 8 Applicants will carry the day on the materiality issue.
9 But I don't believe that they should. I do 10 believe either that the regs require it or that as a matter 11 of contingent fact having held it, reviewed it and having 12 the findings essentially be part of the record that will 13 lead or support low power license, it has become material.
('T14 JUDGE ROSENTHAL: Did the Staff recant on a number
\)
15 of those findings that you are relying on? Did the Staff 16 take a different position subsequently?
17 MR. TRAFICONTE: Did the Staff take a different 18 position in its second exercise --
19 JUDGE ROSENTHAL: No.
20 JUDGE MOORE: No. In their follow-up inspection, 21 in fact none of them survived, did they?
22 MR. TRAFICONTE: Well, some of the factual 23 allegations survived. They said what they saw did happen.
24 Their judgment as to its importance or relevance or whether 25 it is a weakness changed.
()
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2 thought they saw changed.
3 JUDGE ROSENTHAL: Well, if you live by the sword 4 don't you die by the sword? I mean if you were relying on 5 the first report as indicating fundamental flaws don't you 6- have to live by the second report which might well pull the 7 rug out from any claim of a fundamental flaw?
8 MR. TRAFICONTE: I think that is ultimately 9 connected to the whole matter of the merits here and whether 10 the Board impermissible reached the merits.
11 Our view would be if the Staff --
12 JUDGE ROSENTHAL: Well, of course I suppose this 13 gets back to whether reopening is involved, but if the Board s14 has to make a determination as to whether a significant
("')
15 safety issue is involved, . thy doesn't it have to take into 16 account not merely the first report but the second?
17 MR. TRAFICONTE: Well, it is a question of what it 18 means to "take into account".
19 I think what we are presented with in this case, 20 in addition to what I view is a direct reading of the 21 merits, is the credibility matters that surround a Staff 22 initial report.
23 JUDGE ROf . TIUus : So they were credible the first 24 time but not credible the second, is that it?
25 MR. TRAFICONTE: To our view, yes. To our view, r'}
Heritage Reporting Corporation
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- .2 We don't know, since we haven't'had discovery, we 3 . don't know whether they were credible the first time or 4 credible the second time and/or if the truth. lies'somewhere 5 between.
I 6. JUDGE ROSENTHAL:' Well why couldn't they have been.
7' credible both' times?
8 MR. TRAFICONTE: I am certain on those matters, 9' Your Honor,-they can't be credible both times.
10 JUDGE ROSENTHAL: Why not?
11 MR.-TRAFICONTE: Because the facts didn't change 12 and the' judgment did. And what they now say is not an 13 exercise --
14 JUDGE ROSENTHAL: All right.
~
15 So credibility -- I mean there has never been a 16 circumstance in which an individual might-have expressed a 17 particular judgment one time and thought about it more, got 18 additional information, came to a different conclusion, 19 stated that conclusion without being open to the charge that
' 20' at one time or another they were not credible?
21 MR. TRAFICONTE: The answer is that when that l 22 would have occurred in a posture where Intervenor in-between
-23 the two reports filed a contention seeking to litigate what 24 the first report said, I would believe that an individual 25 who changed his mind would not be able to do so without a Heritage Reporting Corporation
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( )) 1 charge of credibility being raised.
2 JUDGE ROSENTHAL: That is a high degree of 3 cynicism on your part.
4 MR. TRAFICONTE: It is. It is, Your Honor.
-5 JUDGE ROSENTHAL: All right. Your time is 6 expired, Mr. Traficonte.
7 JUDGE MOORE: How would you treat the Commission's 8 decision last month on Seabrook on financial qualification 9 relying on our earlier decision in Vogtle that essentially 10 says that when the basis of a contention is a document that 11 is subsequently repudiated, and this is the matter that Mr.
12 Dignan cites in a footnote in his brief, that the movant of 13 the contention needs to come up with an independent -- a
('}14 further independent basis for its contention?
\J 15 How do you survive what the Commission just said 16 last month since you relied on a Staff report that is the 17 basis for your contention that subsequently was repudiated 18 by the same Staff, even though it wasn't the same man or all 19 of the same members, it was the same organization --
20 MR. TRAFICONTE: Yes.
21 JUDGE MOORE: -- which was the identical sitLation 22 in our Vogtle case involving the United States Geological 23 Survey wherein one year in Vogtle they had found an 24 earthquake fault and subsequently they concluded there was 25 no such fault.
-) Heritage Reporting Corporation (202) 628-4888
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-2 the Commission held, relying on-our Vogtle decision, held in L
'3 Seabrook that in-comparable cases that when a document has 4 . been- repudiated by; the- organization, you are going to have 5' to'come up with something else.
6 ~What does that do to your contention?
7 MR. TRAFICONTE: I don't think it weakens it at 8 all. I think that quite honestly the issue is.at the' time 9 1at which we filed our-contention have we made out a
'E 10' specificity basis, fundamental flaw based on what we knew 11 then.
12 A subsequent repudiation, if that is the right.
13 word -- and I just want to. reiterate the point that as a matter of fact in at least two of the five they are not even
(}14
'15 repudiating.what they said as much as the nuance of how to l
- 16. judge what they've said occurred.
17 So I am not so sure " repudiation" is the right 18 word.
19 Certainly they are attempting in every way'that 20 they can to indicate these five factors should be moved to 21 .the other side of the ledger. But that is to say off of the 22 weakness end of the ledger.
23 JUDGE WILBER: They did more than indicate. 1They 24 closed them out, didn't they?
25 MR. TRAFICONTE: They closed them out. That's
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.g 2 JUDGE WILBER: That is a little more than 3 " indicate", isn't it?
4 MR. TRAF. CONTE: That is to state directly that 5 they are no longer a weakness, that's correct.
6 My point is, in at least two or perhaps two and a 7 half of those cases they didn't change their view of what 8 happened. They simply changed their judgment.
9 To come back to the question of repudiation and if 10 that makes the first statement go away, I would analogize it 11 to FEMA in the review of an offsite emergency plan where 12 FEMA comes in with a report finding inadequacies as to 13 three, four, five objectives.
Interveners filed contentions in that regard and
}14
'15 FEMA -- I have to be careful -- but FEMA flip-flops and 16 comes out now and says that as to those four, five, six 17 objectives where they found deficiencies, they are now 18 prepared to say there weren't deficiencies.
19 I honestly don't believe fur a moment that a 20 Licensing Board or the NRC would be prepared to say well, 21 FEMA came in with it, you used it and now FEMA is prepared 22 to withdraw it so out it goes.
23 JUDGE MOOS.E: You are taking it beyond what I've 24 said. The holding of the case is simply that if the basis, 25 the document you are relying on for your basis, for your Heritage Reporting Corporation (202) 628-4888
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.(O) 1 contention, is subsequently repudiated, you must come up i
2 with an independent basis for your contention.
3 It appears that is what has happened here to you.
4- Have you come up with an independent basis and what is it?
L. 5 MR. TRAFICONTE: The short answer to that question 6 is no, we have not nor would it'seem to us to be possible to 7 do so without discovery to do so. I know that is not a good 8 answer.
9 But the other answer to your point is --
10 JUDGE MOORE: Then why on the basis of Seabrook 11 and Vogtle isn't your contention dismissible outright?
12 . MR . TRAFICONTE: Because I don't believe that --
13 first, I don't believe there has been a repudiation in the
. sense in which we are using the term. I think there has
(~}14 15 been a reassessment, if you will, of the significance of 16 certain facts.
17 JUDGE MOORE: At Seabrook, the Applicant initially 18 had a bunch of numbers in some earlier testimony and in the 19 second go-around those numbers were changed very 20 significantly.
21 MR. TRAFICONTE: I'm sorry. Could I ask, because 22 I am familiar with financial qualifications in great deal 23_ and I also am familiar with the Vogtle case, can you just 24 bring to my mind what aspect of the Seabrook financial 25 qualification issue did that decision turn on?
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JUDGE WILBER: I think it is CLI-8903 but I am not 2 sure.-
3 MR.'TRAFICONTE: Was it the difference between.two 41 - sets of. numbers that were proposed?
\
- 5. JUDGE.WILBER: Yes.' Yes.-
6 'MR. TRAFICONTE: For costs of. fuel storage, et.-
7 cetera? ;
8- JUDGE MOORE: I can't recall frankly whether it-9 was cost of fuel. storage.
10 JUDGE ROSENTHAL: It was Intervenor reliance on a 11 set of figures that- had been proposed or that had been
'12-
- submitted or'was contained in some document.that the. utility
'13 had issued and subsequently the Applicant repudiated or at 14 least backed' off of those nurr.bers ' and came up with other 15 numbers.
l'6 MR. TRAFICONTE:' I recall, yes.
17 JUDGE ROSENTHAL: 'And the Commission, as Mr. Moore 18- indicates, had indicated'that once the utility had in effect l-zi9 repudiated that first set of numbers, that Interveners could 20 no longer rely on that first submission of those numbers but 21- . had to come up with --
22 JUDGE MOORE: As a basis for their contention.
23 JUDGE ROSENTHAL:- As a.4 asis for their contention, 24 but had to come up with some independent basis for that 25 particular cost estimate or whatever.
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96 lll1 MR. TRAFICONTE: You brought it back. In fact, 2 having been the Intervenor who had pressed on the 3 difference, I now remember quite distinctly what we are 4 talking about. ;
5 That isn't apposite in my view because the numbers 6 that were repudiated were an assessment of costs stated in 7 August of 1987, I believe, in answer to an interrogatory.
8 If memory serves me, in September of ' 88 they were 9 varied in answer to a different question or perhaps even a 10 question worded the same way.
11 When we pressed on that difference, Applicants 12 came back quite reasonably and indicated that it was 13 answering a different question in August of ' 87 and that the 14 numbers it used there were reflecting costs not counted in 15 September of '88.
16 I am not sure that is a repudiation as much as 17 frankly a clarification of what the meaning of the doculaent 18 was. I don't believe they repudiated that.
19 JUDGE MOORE: All right. I will accept your 20 analysis as clarification. Since you just got through 21 telling me that the Staff was clarifying in two and a half 22 of the instances here that since the Commission said it, why 23 doesn't that send you packing on your contention?
24 MR. TRAFICONTE: Your Honors, I am going to argue 25 frankly in response that I think that would be bad public lll Heritage Reporting Corporation (202) 628-4808
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(-)1 policy in the first instance and secondly -- j i
2 JUDGE MOORE: I might even agree with that but 3 that I am bound by what the Commission holds. And how do !
l 4 you distinguish what they have said just last month in this 5 very case and why isn't it applicable here?
I 6 For the life of me, everything you said doesn't 1 7 seem to distinguish what they've done.
8 MR. TRAFICONTE: If pressed, I would say we need 9 thereby or as a consequence to identify the two and a half 10 portions of what was not repudiated, clarified or 11 essentially withdrawn and what is exactly in the second 12 inspection report what it was in the first, simply the Staff 13 coming in yea instead of nay.
(~314 Now if you are prepared to take Vogtle in the V
15 recent Commission ruling in Seabrook to say that the Staff 16 can bas? a'.ly come in and say nay on five items, Interveners 17 can come in with a contention alleging that that raises some 18 serious matter, Staff can come back and say we meant nay on 19 all five items even though the facts are just as we said -- j 20 JUDGE MOORE: All the Commission is saying is you 21 have to come up with an independent basis for your 22 contention and that those matters, those documents will not 23 suffice.
24 MR. TRAFICONTE: In the context of this case, that 25 would be a practical impossibility.
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! 1 JUDGE MOORE: Why? FEMA was.there. There are f- 2 FEMA reports. You've got an eight volume exercise.
3 MR. TRAFICONTE: FEMA did not review the onsite 4 plan. FEMA is not in the business of reviewing it and no 5 FEMA --
6 JUDGE MOORE: Well, your expert can review it on L7 the basis of all the comments and if that is how it shakes 8 out, it shakes out that way.
9 JUDGE WILBER: If this is a fundamental flaw, I 10 would think maybe FEMA would have observed it also, wouldn't 11 they?
12 If_it is a fundamental flaw, it must be pervasive 13 throughout the training program somehow.
MR. TRAFICONTE: Not necessarily in that the
[}14 15 training program offers --
16 JUDGE WILBER: You mean it is just one little 17 minor item?
18 MR. TRAFICONTE: No. That it is an item that is 19 provided to one. staff over here, onsite personnel pursuant 20 to an onsite plan, which FEMA doesn't have any contact with, 21 doesn't review. And it professes no expertise in regard to 22 it.
23 That is, as distinct from the offsite plan, 24 offsite personnel FEMA does have expertise in and does 25 review.
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l 99 J 1 So we have a serious problem about opportunity to 2 makeisuch a showing. And beyond that, I would go one step 3 further if I'might and just argue that what our affiant said 14 .both times based on the facts stated in the first inspection 5 report, seid facts continuing to this. day to be, if you 6 will, the ..aw of the case since the facts are very hard for 7 us because l': is a past event.
8 What our affiant said in his two affidavits based 9 on the first inspection report would be, in those very 10 limited instances,.a subsequent, if you will, or independent 11 substantiation.
~12 I have run way over, Your Honor.
13 JUDGE ROSENTHAL: You are way over time.
14 MR. TRAFICONTE: I am way over.
'15- JUDGE ROSENTHAL: And this has been because of our 16- questions. But you can have 30 seconds.
17 MR. TRAFICONTE: Thank you. I appreciate that. I 18 am going to make-one very quick point about what a 19 fundamental law is and what a significant revision is.
20- It is my view that 903, when it identifies a 21 significant revision, must have had in mind a result that 22 would have required, prior to licensing, a remedial 23 exercise.
- 24 If a remedial exercise were required prior to 25 licensing based on the results, that would be almost by Heritage Reporting Corporation
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()1 definition a significant revision. Or, would require and be 2 _ linked to a significant revision.
,: 3 That is the test, I believe, that should be 4 applied whether it is a training issue or a communications 5 issue or whatever, whether-it would require remedial 6' exercise.
7 JUDGE WILBER: Do these five items require 8 remedial exercise?
9 MR. TRAFICONTE: Yes. We believe that they would.
10 JUDGE WILBER: All right.
11 MR. TRAFICONTE: That they are serious enough and 1:2 that they would indicate a level of training that is 13 deficient enough to require some form of remedial outside
/~)14 exercise.
%)
15 Thank you.
16: JUDGE ROSENTHAL: Thank you.
17 All right. Mr. Dignan, Mr. Moore has one 18 question.
- 19. JUDGE MOORE: Could you inform us what the status 20 of the bankruptcy proceeding is? We received today a copy 21 of the document you filed with the Commission with no 22 attachments, that the utilities comprehensive plan has been 23 accepted.
24 And it is rather a mystery to us. I was wondering 25 if you could tell us what the status of the bankruptcy O Heritage Reporting Corporation (202) 628-4888
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101 proceed'ing : is .
1
.2 MR. DIGNAN: No, no, no.
3 There is some confusion here and I hope the O 4' mailing -- it wasn't the wrong thing. What should have been i
- 15. in theLmailing was an' order of the Bankruptcy Court 6' accepting and approving the settlement between Public 7- Service of.New Hampshire and MMWEC.
'8 The effect of that --
9 JUDGE MOORE: That was not at all made clear from 1 a
- r. 101 the papers.
- MR. DIGNAN: I apologize. Here is always your
'12 ' problem. You ge+ these things from Courts. You want to 13 advise the Commission.and, if you-start editorializing, you 14 get whacked over the head by somebody in the case for trying 154 to brief scmething.
16 So I sent it without comment.
17- What it is, aus :I . understand it, and you should 18 understand, Judge Moore, our office is not involved with the 19 bankruptcy. We had to withdraw from that for conflicts 20 reasons on'our own. I mean nobody threw us out. We just 21 couldn't handle both in the setting of this case.
22 .My understanding from bankruptcy lawyers is that 23 what that order represents is the approval which was
'24 necessary from the Court of the compromise reached between 25 Public Service Company of New Hampshire and MMWEC of its Heritage Reporting Corporation (202) 628-4888
102 (I ) l' . differences, which will have the effect -- and the reason it 2 'is relevant to the Commission -- will have the-effect of 3 permitting Public Service Company to pick up the MMWEC share 4 from here on out.
5 That is all that was.
6 That is my understanding of what the document was.
7 JUDGE MOORE: All right.
8 MR. REIS: The Staff has'been following and that 9 is the Staff's understanding of the document.
10 JUDGE. MOORE: Thank you.
11 JUDGE ROSENTHAL: Thank you, Mr. Reis.
12 All right. On behalf of the entire Board, I wish
=23 to thank counsel for all of the parties for their 14 enlightening presentations this afternoon.
15 And on that note, the appeal of the Attorney 16 General of Massachusetts et al will stand submitted.
17 (Whereupon, at 3:35 p.m., the hearing in this 18 matter.was adjourned) 19 20 21-22 23 24 25 Heritage Reporting Corporation (202) 628-4888
l L ,,
1 CERTIFICATE 2-3- This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the' matter l 5 of:
6 Name: Public Service Company of New Hampshire, et al.
l (Seabrook Station, Units 1 and 2) 7 Oral Arguments
-l 8
Docket Number: 50-443-OL-1 '
50-444-OL-1 9 Place: Bethesda, Maryland 10 .Date: April 21, 1989
- 11 were held as herein appears, and that this is the original 12L transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the 15 direction of the court reporting company, and that the 16 . transcript is a true and accurate record of the foregoing 17 proceedings. t s
18 /s/ A_. .
19 (Signature typed) : Donna L. Cook 20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 j Heritage Reporting Corporation (202) 628-4888
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