ML20245C121
| ML20245C121 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/24/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8532 ASLBP, OL, NUDOCS 8904270010 | |
| Download: ML20245C121 (126) | |
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UNITED STATES
'O NUCLEAR REGULATORY CO&DdISSION
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ATOMIC SAFETY AND LICENSING BOARD In the Matter of: ) <
) Docket Nos. ,
PUBLIC SERVICE COMPANY OF ) 50-443-OL NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROCK STATION, UNITS 1 AND 2) ) PLANNING EVIDENTIARY HEARING 3
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Pages: 19948 through 20074 l Place: Boston, Massachusetts Date April 24, 1989 1
i HERITAGE REPORTING CORPORATION WReportes 1229 L Street, N.W., Salee FA WasMagnon, D.C. 20005 g{g42ggg(( $$$$43 c T
L 19948-h UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING-BOARD In the Matter of: )
) Docket Nos.
PUBLIC' SERVICE COMPANY OF ) 50-443-OL NEW HAMPSHIRE, et-al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ~) PLANNING
_. EVIDENTIARY HEARING Monday April 24, 1989 .
Auditorium Thomas'P. O'Neill, Jr.
Federal. Building 10 Causeway Street g~ Boston, Massachusetts
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The above-entitled matter.came on for hearing, pursuant to notice, at 1:00 p.m.
BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN
. Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board
. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE RICHARD F. COLE, MEMBER Atomic Safety and Licensing Board '
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l'
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19949
'6 APPEARANCES:
-For the Acolicant:
- THOMAS G. DIGNAN,.JR., ESQ.
GEORGE H..LEMALD, ESQ.
KATHRYN'A. SELLECK, ESQ.
JAY BRADFORD SMITH, ESQ.
JEFFREY P. TROUT, ESQ.
GEOFFREY C. COOK, ESQ.
., Ropes & Gray-One International Place- .
Boston, Massachusetts 02110-2624 For the NRC Staff:
SHERWIN E. TURK,-ESQ.
ELAINE I. CHAN, ESQ.
EDWIN J. REIS, ESQ.
Office of General Counsel U.S..-Nuclear Regulatory Commission Washington, D.C. 20555
_For the Federal *=^roency Manaa-- nt Acencv! ;
H. . JOSEPH FLYNN, ESQ.
LINDA HUBER McPHETERS, ESQ.
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Federal Emergency' Management' Agency j 500 C Street, S.W.
Washington, D.C. 20472 (
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For &ha Co==onwealth of Massachusetts:
JAW,8 M. SHANNON, ATTY. GEN.
JOHN C. TRAFICONTE, ASST. ATTY. GEN.
ALLAN R. FIERCE, ASST. ATTY. GEN.
, PAMELA TALBOT, ASST. ATTY. GEN.
MATTHEW BROCK, ESQ.
LESLIE B. GREER, ESQ.
Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, Massachusetts 02108 l
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19950
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APPEARANCES: (Continued)
For the State of New Hrunpshire:
GEOFFREY M. HUNTINGTON, ASST. ATTY. GEN.
State of New Hampshire 25 Capitol Street concord, New Hampshire 03301 For the Seacoast Anti-follution Leacupt, ROBERT A. BACKUS, ESQ.
Backus, Meyer & Solomon i
116 Lowell Street ,
P.O. Box 516 Manchester, New Hampshire 03105 l JANE DOUGHTY, Director {
Seacoast Anti-Pollution League l 5 Market Street i Portsmouth, New Hampshire 03801 )
J For the Town of Amesburv {
k BAABARA J. SAINT ANDRE, ESQ.
Kopelman and Paige, P.C. I 77 Franklin Street l Boston, Massachusetts i
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WILLIAM LORD j Town Hall Amesbury, Massachusetts 10913
- i For the City of Haverhill and Town of Merrimac: 4 ASHOD N. AMIRIAN, ESQ.
P. O. Box 38 Bradford, Massachusetts 0).835 "
For the City of Newbuf;voort -
BARBARA J. SAINT ANDRE, ESQ.
JANE O'MALLEY, ESQ.
Kopelman and Paige, P.C.
e- 77 Franklin Street Boston, Massachus-stts 02110 t
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jx 19951 /19953 APPEARANCES: (Continued) !
For the Town of Newbury;
.i R. SCOTT HILL-WHILTON,.ESQ.
Lagoulis, Clark, Hill-Whilton & McGuire 79 State Street Newburyport, Massachusetts 01950 For the Town of Salisburvt CHARLES P. GRAHAM, ESQ.
Murphy and Graham ,
1 33 Low Street Newburyport, Massachusetts 01950 For the Town of West Newburvt JUDITH H. MIZNER, ESQ.
Second Floor 73-State Street Newburyport, Massachusetts 01950 l f
g For the Atomic Safety and Licensina Board: ,
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\s ROBERT R. PIERCE, ESQDIRE.
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i
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1 EB'QQRRRIHqa 2 JUDGE SMITH: Good afternoon.
3 MS. TALBOT: Good afternoon, Your Honor. j i
4 JUDGE SMITH: Is there any preliminary busie. ass?
5 MS. McPHETERS: Yes, Your Honor. q l
6 On last Friday the 21st FEMA submitted by mail its j 7 reply to the motion to compel the production of documents by 8 the Massachusetts Attorney General. ,
9 I would like to deliver copies of that motion.
10 And also a document that FEMA elected to produce voluntarily 11 rather than contest disclosure to the litigants present 12 here.
13 I would also like to deliver to the Board in
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14 gAERIA copies of documents that FEMA is withholding from !
15 production based on the deliberative process privilege.
16 JUDGE SMITH: All right.
17 N3. McPHETERS: Thank you. ;
18 'S.
M TALBOT: Your Honor, Mass AG requests that 19 that motion could be argued sometime before the end of this 20 week, just so in the event that the documents are deemed -
21 disclosable we may have them before the break.
22 JUDGE SMITH: While we're on this point. It seems 23 like there is a step being cut out. Matters are being 24 brought to the Board before it's really been determined that 25 we need to look at them.
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\s ,/ 1 Normally you would come back and identify a 2 document to the person seeking production and claim the
'l 3 deliberative process privilege and they may agree with you. i i
4 And they may say, all right, that's fine and accept that.
5 And it may not be necessary for the Board'to evaluate it.
6 MS. McPHETERS: I think that we have already gone 7 beyond that, Your Honor, 8 JUDGE SMITH: That point has already been passed.
9 MS. McPHETERS: We did submit a log initially 10 identifying the documents we were withholding and they are 11 challenging some of them.
12 JUDGE SMITH: All right.
s 13 That's fine then. Just so it's right.
g, i\- ~~j 14 MS. McPHETERS: We would be prepared to argue the 15 motion any time the Board wants to take it up.
16 JUDGE SMITH: Whose job is it going to'be to 17 remember it? That will be yourd, you want the documents.
18 So you bring it into the process when you're ready. When 19 you think it's timely.
. 20 NZ. TALBOT: Thank you, Your Honor.
21 (Documents proffered to the Board.)
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22 JUDGE SMITH: Any other preliminary business?
l 23 MR. TROUT: Yes, Your Eonor. )
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24 First of all, Applicants would like to report to 25 the Board and the parties that the discovery dispute between l
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l Applicants and the Town of Amesbury has been resolved.
2 There vill be no need for the Board to rule on the motion to 3 compel which Applicants filed. l 4 Secondly, Applicants have filed today and have l
I 5 distributed to the parties and the Board in the courtroom 6 two motions in limine concerning the witnesses which would 7 be coming on today.
8 JUDGE SMITH: Did the Attorney General just now .
9 receive your motion?
10 MR. TROUT: Yes, I'm afraid so, Your Honor.
11 MS. TALBOT: Yes, Your Honor.
12 JUDGE SMITH: Well, you're going to need some time 13 to read it, I believe.
14 'MS. TALBOT: Yes, Your Honor.
15 Your Honor, at this point I would also like to 16 bring up that Applicants have indicated, in their rebuttal 17 that pertains to the s6rvey, that they did an update on the 18 survey or that an update in the making as of January of '89.
19 I believe that Applicants are obliged to
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20 supplement their answers to interrogatories. This was asked 21 before to give any information on any surveys or analyses 22 that were done.
23 In addition, I have asked Applicants repeatedly to 24 provide me with the information. I did so on April 2nd in 35 writing and as of this date I have had no response.
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\,/ 1' MS. SELLECK:. I believe you had two questions, 2 Pamela, and I will have answers for you this afternoon.
3 MS. TALBOT: Thank you.
I '4 I would have preferred t'o have had the answers-5l Hbefore we had Dr. Dillman here, just'for the record. It t
6 would have been more timely.
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7- JUDGE SMITH: Do you want'some time to read the 8- objection of.the testimo-y?
9 MB. TALBOT: Yes, Your Honor.
10 (Discussion off the record.)
11- JUDGE SMITH: Ms. Talbot, are you going to argue 12 for the Attorney General?
13 MS. TALBOT: Oh, yes, Your Honor, I am.
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\ 14 I believe the Applicants, do they go first on i
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15 their motion in limine and I can. respond. ,
i 16 JUDGE SMITH: Well, their arguments are already 1
17 before us. So it's up to you now to address them.
.18 MS. TALBOT: I would start, Your Honor, by saying 19 that I characterize their argument as a game of semantics.
. 20 I think that if you look at the bases underneath 21 the contention you will see that their arguments are not 22 well founded.
23 In particular on page I four of Applicants motion 24 they characterize Basis B, C, and D as dealing with 25 confidentiality of information gathered. I would say that a Heritage Reporting Corporation (202) 628-4888 I 1
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19958 1 clear reading of Basis C -- and if Your Honor wants I can 2 read it into the record -- deals with method. In part it 3 says: "Much information on functional characteristics needs 4 could and should be obtained to enable appropriate and 5 timely assistance to be provided." l 6 JUDGE SMITH: Wait a minute.
7 MS. TALBOT: Page 88, Your Honor, of the 8 consolidated contentions, Basis C. .
9 MR. TROUT: Pamela, could you read all of the )
l 10 sentence in the motion that you're referring to and not just '
11 one part.
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i 12 MS. TALBOT: I have my turn to speak, Mr. Trout,
< 13 then you will have yours.
l.- q 14 (Document proffered to counsel.)' ]
l 15 MS. TALBOT: Oh, thank you. j l
16 Your Honor, Mr. Pierce gave me his bclok and in his 17 book it would be page 50 -- actually page 60. ,
18 Basis C deals with the needs codes and Appendix 5. l l
19 Maybe to appease my brother counsel Trout I will read the l l
20 entire thing to put in context. -
l 21 JUDGE SMITH: Whan are you reading now?
22 MS. TALBOT: The sentence that I thought was 23 pertinent was the last sentence which says: "Much l
24 information on functional characteristics" --
25 JUDGE SMITH: You're reading Basis C?
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'(_ ,/ 1 MS. TALBOT: Yes, Your Honor.
i 2 I query how one could obtain such information if {
l 3 one wasn't using some sort of a method. I mean this is what 4 the survey is all about is identifying the people and
- 5. determining their needs.
6 Basis C is all about individualized needs 7- determination. Contrary to how Applicants characterize it, 8 it has nothing to do with confidentiality. {
9 MR. TROUT: That's where I want you to read the 10 rest of the sentence in my motion.
11 MS. TALBOT: It was unclear. ,
1 12 (Counsel reviewing document.)
(,r N 13 MS. TALBOT: Oh, I see.
1\'h 14 You're right, Jeffrey. 'My apologies. . 1 15 Applicants have characterized Basis C as 16 concerning the manner of listing information.in Appendix M.
17* I think that just buttresses the argument I just made that a -
18 clear reading of Basis C shows that it could not deal with 19 anything other than a method for obtaining information
. 20 otherwise we're into some obscure game of semantics. i l .
l 21 I mean, maybe I didn't put the magic word " survey" 22 in there. But it's pretty clear that to obtain the 23 information you have to use some sort of a means.
24 Shall I continue, Your Honor, or do you want to 25 take a minute to peruse.
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1 JUDGE SMITH: Yes. Just give us a moment here.
2 (Pause) 3 JUDGE SMITH: So your argument then is that Basis 4 C faults the plan for its failure to gather the functional 5 characteristics and needs of the special needs population.
6 MS. TALBOT: Right.
7 I have other arguments, too, but that's one of 8 them. ,
9 JUDGE SMITH: All right.
10 Go ahead with your next argument then.
11 MS. TALBOT: I also would direct Your Honor to 12 Basis D, which Applicants have characterized as concerning g 13 identification of outside groups.
14 I would say that this basis doesn't only concern 15 outside groups but it sets clearly that the plan also fails 16 to identify people resources within the handicapped o 17 commurity who may be utilized in the development and -
18 exercise of the plans.
19 JUDGE SMITH: Does the testimony cover that point?
20 MS. TALBOT: It's mentioned in the testimony, yes. -
t 21 JUDGE SMITH: Where?
22 MS. TALBOT: I'll have to go back and look at it.
23 (Pause) I 24 MS. TALBOT: I have a corrected copy here of the 25 testimony. There were some mistakes in the original filing, i Heritage Reporting Corporation (202) 628-4888 l
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' (.f Tg 1 isoLif I refer-to pages from this' -- in the beginning of the 2 testimony -- oh, here is the original.
j-3- On page seven I asked Dr. Dillman and NW.
4 Moriearty to' opine'as to the special needs poster which was 5 the mechanism that Applicants used to --
6 JUDGE SMITH: Wait a minute. .
7 I see your pages are:4't numbered. .
. I 8 MS. TALBOT:. Your Honor,_do you have the corrected j 9 version or the old one?
10 JUDGE SMITH: We-have the old one.
'll N3. TALBOT: You have ti;e old one. So it's page 12 seven.
ge g 13 JUDGE SMITH: Yes, I have page seven.
-- 14 All right.-
15 MS. TALBOT: The question --
16 JUDGE SMITH: Where are you reading from now?
l 17 MS. TALBOT: Question: "Before we go any further 18' regarding the survey can you both provide comments you had .
19 with respect to the special needs poster?"
, 20 The special needs poster was the method that 21 Applicants used to supposedly employ the help of these ,
22 outside groups. And we have an opinion on that.
.E3 In addition, a lot of the --
24 JUDGE SMITH: Wait a minute.
25 Let me read that. I keep searching for the point k_
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. s_s/ 1 MR. TROUT: Has the corrected version of the 2 testimony been distributed yet?
3 MS. TALBOT: Not yet.
4 (Pause to review document.)
5 JUDGE SMITH: You'll have to be more helpful, 6 because --
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7 MS. TALBOT: Okay.
8 JUDGE SMITH: -- I just can't find where that 9 language on the bottom of page 7 and top of page 8 is.
10 MS. TALBOT: Well, I guess what I --
11 JUDGE SMITH: Let me back up to make sure I 12 understand.
yr 'N 13 MS. TALBOT: I think Applicants have made an ,
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-N 14 artificial distinction, Your Honor, between the survey 15 method and the methods that are employed to try to engender 16 this help from outside, when in fact the special needs 17 poster was given to us in discovery as part of the survey 18 materials.
19 JUDGE SMITH: Now, wait a minute. You are saying 20 Basis D, which used to be Attorney General --
21 MS. TALBOT: 50(d).
22 JUDGE SMITH: -- Contention 50(d), Basis D says 23 that organizations capable of assisting handicapped persons",
24 with one exception, on an individual basis have not been 25 identified.
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1 MS. TALBOT: Correct.
2 JUDGE SMITH: And that people resources within the 3 handicapped community, who may be utilized in development, 4 review and exercise of plans from homebound and other 5 special needs residents, had not been identified.
6 H3. TALBOT: Right.
7 JUDGE SMITH: I just simply can't find on page 7 8 of their testimony, in response to that question, about the ,
9 needs.
10 MS. TALBOT: Well, they discuss that.
11 OUDGE SMITH: Now where do they --
12 MS. TALBOT: Maybe you don't know what the special 13 needs poster is. ,
14 JUDGP SMITH: Well, let me read what it says.
15 " Encourage people to call in in order to be 16 surveyed."
17 MS. TALBOT: Right.
18 JUDGE SMITH: And it talks about targeted 19 individuals.
20 MS. TALBOT: Right, which would be those with -
21 special needs who need assistance.
22 JUDGE SMITH: Yes, those are the targeted group.
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23 MS. TALBOT: Right.
24 JUDGE SMITH: Do you know the logical relationship 25 between the language you h' ave just cited to us and the i
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'l thoughts set out in Basis D?
2 It's just not there in my mind. I cannot connect 3 it.
4 MS. TALBOT: I guess all I was trying to point 5 out, Your Honor, is that I think it's an artificial 6 distinction _that Applicants have created to try to separate
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7 the survey from the efforts to try to engender help from 8- outside resource groups, which may or may not even exist, 9 because it was treated as one problem, and the special needs 10 poster went out only to people that dealt with handicapped 11 individuals. And in the course of preparing testimony, the 12 experts didn't look at them as separate matters.
v se~ 13 The issue that was attacked was were the special 4
\ 14 needs people identified, and were the actual people 15 identified and were the needs identified.
16 JUDGE SMITH: I just can't see that. There is no 17 fair reading of the language on the bottom of page 7 and the 18 top of page 8 which relates.to identification of individuals 19 and organizations capable of assisting handicapped people.
. 20 It's just not there.
21 MS. TALBOT: Okay, Your Honor, maybe --
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22 JUDGE SMITH: You are not pointing it out. You 23 are not focusing in on any nexus between them, and I can't 24 see it for myself. It just isn't there.
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1 to Basis E. I mean I don't think Basis E could be any more 2 clearer. It says that periodic surveys will be mailed 3 which, for reasons stated above, is an unreliable method. I 4 mean there is the magic word.
5 JUDGE SMITH: Periodic surveys in themselves are 6 an unreliable method.
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7 MS. TALBOT: No, Your Honor. The proposal 8 provides no reasonable assurance t?at information collected 9 will be validated, updated or maintained. It merely asserts 10 that periodic surveys will be mailed which, for reasons 11 stated above, is an unreliable method. Reasons being 12 inability to identify the people ar.d inability to determine 13 the needs and inability to procure assistance.
14 What the testimony does is it describes what a 15 reliable method would be. I mean just to get back to the 16 magic words for a minute. Let me get my notes.
17 The purpose of our testimony was twofold. On the 18 one hand, we had to' rebut the FEMA finding. FEMA, in its 19 finding in J.10.d, all it says is that lists of special 20 needs are maintained by way of mail-in cards, et cetera; you -
21 know, mail-in card posters, which was what page 7 was about, 22 telephone calls, et cetera.
23 So then our contention says the list is 24 inadequate. It's clear that we're talking about the lists 25 that FEMA was concerned with when it made its finding which Heritage Reporting Corporation (202) 628-4888
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( ,/ 1 was the list that was generated by the survey. I mean I l 2 think some element of common sense --
3 JUDGE SMITH: Now the help that we need now is for 4 you to point out in a careful, deliberate way so that we can 5 follow you word by word, line by line, where in your 6 contention, where in your Basis and where in your response
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7 to interrogatories the subject matter of the Dillman-8 Morlearty testimony is covered.
9 MS. TALBOT: Okay, Your Honor.
10 JUDGE SMITH: We need slowness and deliberateness 11 and care, because when you start talking real fast --
12 H3. TALBOT: Okay:
r- 13 JUDGE SMITH: -- about your views of it, it just
'- / 14 passes. I want to be able to read somewhere in paper 15 submitted by you, not orally, but somewhere in the papers 16 submitted by you where the subject matter of this testimony 17 is covered.
18 MS. TALBOT: Okay.
19 JUDGE SMITH: And so far I haven't been able to
. 20 find it.
21 MS. TALBOT: Well, let me walk you back through 22 the contention and then I will read to you some things that 23 we said in discovery that hit it right on the nose.
24 JUDGE SMITH: Well, so far I have to say that none 25 of us have been able to find the subject matter of the
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1 testimony covered by the written aspects of the contention 2 and bases that you have identified so far.
3 MS. TALBOT: Your Honor, what about C? I mean, I 4 want you to enlighten me. Maybe I'm not seeing it your way, 5 but it talks about, you know, gathering the right q l
6 information. j i
7 (The Board confers.)
8 MS. TALBOT: Your Honor, if I could direct the ,
9 Board to --
l 10 JUDGE SMITH: We're still assessing your Basis C 11 to see if that --
12 MS. TALBOT: C, right.
13 JUDGE SM,ITH: -- in itself can carry the whole
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14 thing.
15 MS. TALBOT: Also, the first sentence in the 16 actual contention I just wanted to emphasize, too, that
- 17 that's very unambiguous. And to the extent that the bases 18 relate back to the contentions, I think that the Judges 19 might want to take a peek at that.
20 (Pause . ) -
21 JUDGE SMITH: Incidentally, the Board believes 22 this subject matter, this motion could have been raised 23 earlier. You'are correct. You can wait until the moment 24 comes up that evidence is offered and then make your 25 arguments orally, and that the objections in limine are a
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1 voluntary effort. But the fact is this could have been 2 offered, this could have been submitted last week earlier, 3 and we could have been prepared for it.
4 Now we're sitting here juggling through papers, 5 really wasting time available for hearing. And this could 6 have been done better.
7 MR. TROUT: Your Honor, I want to apologize to the 8 Board and the parties for that. Applicants last week were 9 under the impression that Mr. Sikich would be on before Mr.
10 Dillman and Ms. Moriearty.
11 MS. TALBOT: No , Your Honor, I made that clear. I 12 made that clear.
(7~'N 13 MR. TROUT: Yes, you did, Pamela. but you --
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\ 14 MS. TALBOT: Mr. Dillman flew in today.
15 MR. TROUT: You did at the end of the week. And 16 at that time we scrambled to get this together and we just 17 didn't have it done by the close of business Friday to get
. 18 to the Goard and the parties. But I recognize that as a 19 problem, Your Honor, and the Applicants did the best that 20 they could do.
21 (The Board confers.)
22 JUDGE SMITH: We cannot find, based upon the 23 contention itself'and Basis C standing alone, the arguments 24 we have seen in the objections that you provided sufficient 25 notice to the Applicants in your pleadings as to the
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1 methodological infirmities of the survey. So we are going 2 to desist ruling until we hear the rest of your arguments, 3 and then we will reconsider it in its entirety.
4 MS. TALDOT: Okay.
5 JUDGE SMITH: But you are going to have to 6 continue your arguments. You haven't made your point yet.
7 HS. TALBOT: Okay, Your Honor.
8 But also, Your Honor doesn't have in front of him -
9 answers to interrogatories that Mass AG filed in response to 10 Applicants' requests.
l 11 JUDGE SMITH: That's correct. We are relying 12 solely upon the motion.
/ 13 H3. TALBOT: Well, I will read No. 172. It's 14 under JI-49. It says, "Please state all facts underlying 15 your assertion that senarate protective action plans need to 16 be developed for each of the main categories of handicapped 17 individuals present in the EPZ in order to provide 18 reasonable assurance that adequate protective measures can 19 and will be taken, and define adequate. Please also list
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20 all such main categories."
21 Response: "Only if an assessment is made of the .
22 needs of the different categories of special needs 23 individuals within the EPZ can planning take place to 24 provide for those requirements in the event of a 25 radiological emergency. Without such planning, a sector of Heritage Reporting Corporation O
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I the population that will have among the most logistica11y )
1 2 demanding set requirements in the event of an emergency are 3 left unprovided for." i l
4 And it goes on for like another six or seven l 1
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7 interrogatory as pertaining to JI-49, the response clearly 8 goes towards their survey. Again, only if an assessment is 9 made of the needs of the different categories of special 10 needs individuals.
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1 JUDGE SMITH: Are you saying that we should infer 2 from that that there is only one way in which an assessment 3 can be made, and that is by survey.
4 Is that your point?
5 H3. TALBOT: No, I'm saying, Your Honor --
6 JUDGE SMITH: Therefore, necessarily the survey is 7 inadequate.
8 MS. TALBOT: Yes, Your Honor, a survey of each .
9 individual who is going to be served. I'm also trying to 10 point out --
11 JUDGE SMITH: No, I want you to be careful now 12 what you are reading from and what you are saying is orally.
13 Read back again the interrogatory response upon which you
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14 depend.
15 MS. TALBOT: "Only if an" -- well, there is more 16 than this one, too. "On1y if an assessment is made of the 17 needs of the differing categories of special needs 18 individuals within the EPZ can planning take place to 19 provide for those requirements in the event of a 20 radiological emergency."
21 I guess my point is that it couldn't have been a 22 surprise to Applicants given that answer that we are 23 concerned about the lack of assessment, i.e., the inadequate j l
24 survey or the means by which information was garnered.
25 This survey that's on the table, Your Honor, is
~
(.) Heritage Reporting Corporation j
. (202) 628-4880 I
jr y 19973 s-- 1 really an assessment of the individual-needs. It's not a 2 Maybe the word --
i; sample survey we're talking about.
1 3- JUDGE SMITH: No, I understand that. ,
4 MS. TALBOT: -- itself is deceptive.
i 5 JUDGE SMITH: I understand that. My concern is 1 0
6 that whenever you had an occasion to talk about -- and there {
7 was effort to find out about surveys -- that whenever you l
, 8 had an occasion to talk about surveys, you lapse into j 9 particulars which don't talk about methodology. And nowhere 10 in any papers that you have given to us do you point out, in 11 response to the interrogatories, specifically what is 12 deficient.
'~ 13 MS. TALBOT: Well, Your Honor, can I point you to 14 another one?
15 JUDGE SMITH: Well, yes, I want to hear all of 16 your arguments.
17 MS. TALBOT: Okay.
18 JUDGE SMITH: Come up with the best information 19 you have which talks about the methodology of the survey.
':20 Come up with the best information that you have, the 1
21 methodology of the survey itself.
22 MS. TALBOT: Your Honor, the -- !
l 23 JUDGE SMITH: Not the overall result that the plan 24 is still inadequate in that there has been no assessment of 25 the needs.
k
\m / Heritage Reporting Corporation (202) 628-4888 l
19974
( ,
1 MS. TALBOT: Okay.
2 JUDGE SMITH: But talk about the survey itself.
3 MS. TALBOT: Okay. ,
4 JUDGE' SMITH: If you can. Make all your 5 arguments, but that is what would be very helpful.
6 MS. TALBOT: I think the first point I'll make is 7 that, and I'm not going to pretend anything here. I mean, 8 the basis of our argument came in the form of Dr. Dillman .
9 and Sharon Moriearty's testimony on JI-48. I mean I see 10 that as a functional equivalent of our supplementary answer 11 to discovery.
12 You know, the schedule was rather truncated and we 1
f: 13 did the best we could. And we said, well, there are 14 problems here with assessment, and then, you know, here is 15 the package.
16 JUDGE SMITH: Are you then seeking leave of the 17 Board to make a supplemental response? Is that it?
18 MS. TALBOT: If Your Honor will grant it to me, I 19 think that would be a great thing.
20 JUDGE SMITH: You're not going to put it on that 21 basis un]ess you know yt>u are going to prevail.
22 MS. TALBOT: I think that would be great. I mean 23 I'll make the request, sure. I mean I also think there is 24 other little points I can bring up here, but I think that 25 what I just said is really the most honest in that again I Heritage Reporting Corporation (202) 628-4888
, 19975 I i don't think there was any surprise. They asked us 2- interrogatories about the survey. There are some other 3- answers here that talk about the method, I'11 grant you, not.
4 in. great detail because we didn't have the expertise on 5- board yet.
6 JUDGE SMITH: Well. I think that your candor is 7 commendable. I think what you are saying is that you did 8 not have specifically in mind survey methodology until you 9 got your experts on board.
10 MS. T,ALBOT: Right. Your Honor, I'm not a survey 11 expert. I wouldn't know.
12' JUDGE SMITH: Right. All right, I understand -
13- that. It may be that your candor may not help you win this f]
V 14 voless we find' good cause for late revealing of your
^
13 litigation strategy. But I might also say that your candor 16 enhances your credibility, and I'm convinced that it will 17 come in handy some time during this litigation. Believe me, 18 this is very, very important. Very, very important.
19 MS. TALBOT: I would also point Your Honor to
. 20 Interrogatory 171. And since you don't have it in front of 21 you, I will read it. -
~
22 Again, Applicants chose to characterize this
- 23. question as one pertaining to JI-49, although the answer 24 bears on this survey.
25 The question was, "Please state all facts Heritage Reporting Corporation (202) 628-4888
__-__2____-_____--
l 19976
- 5. .
1 underlying your assertion that a generic plan is inadequate i
2 to meet the different needs of different categories of 3 handicapped individuals...."
4 Response, among other things. "Nor does the plan 5 provide for ways of assessing what the requirements of i
6 individuals may be in the event of a radiological i 1
7 emergency."
l 8 Again, to the extent that you have to garner and . j 9 obtain information in order to assess requirements of 10 individuals, it's not a very broad leap to make to think 11 that, oh, that assessment means the survey. How else did ;
12 they get the information? It didn't drop in their lap. i g
13 JUDGE SMITH: That is part and parcel of your 14 argument. There is only one way these assessments can be {
l 15 made is by survey. {
l 16 MS. TALBOT: Yes. i 17 JUDGE SMITH: And we should always h9.ve assumed i
18 that -- j l
19 MS. TALBOT: You have to ask people.
20 JUDGE SMITH: -
you have to ask people, and they i
21 are not doing it right. ,
22 MS. TALBOT: Right.
23 JUDGE SMITH: So we have to read your particular 24 criticisms of th e survey in a different light then. Your 25 criticism that opponents skewed the results and that a mail
( .
Heritage Reporting Corporation (202) 628-4888
g_ 19977 h
\ 1 survey is not valid means something else.
2 Would you summarize all of your arguments that, 3 when called upon to criticize the, survey, you came up with 4 essentia11y.two' forms of criticism?
5 One is that opponents to Seabrook nullified the 6 . reliability;' and two is, a mail survey is inherently -- is
'being among the most unreliable methods of gathering
.7 8 information?
9 MS. TALBOT: I must admit that Dr. Dillman has 10 convinced me otherwise about, you know, how good mail 11 surveys are.
12 JUDGE SMITH: But as far as the surveys used by r% 13 Applicants known to you before the close of discovery is 14 concerned, you are not able to point out any specific 15 language faulting.the surveys other than the opponents of 16 Seabrook frustrated the survey effort --
17 MS. TALBOT: Right, because we didn't --
18 JUDGE SMITH: -- and your response.
19 MS. TALBOT: That's right.
. 20 JUDGE SMITH: Which you no longer stick by your j 21 response.
22 MS. TALBOT: Right, because we hadn't retained Dr.
23 Dillman yet, so how could I have known?
24 JUDGE SMITH: So you just didn't know. You just 25 didn't know that the survey was methodologically infirm 7 -
Heritage Reporting Corporation (202) 628-4888 t
_ _ = _ _ _ _ - _ _ _ _ -
I 19978 i
1 until you got Dr. Dillman.
2 MS. TALBOT: Well, we knew that the assessments 3 were off.
4 JUDGE SMITH: Yes, you knew that the assessments 5 were not good. But you didn't know why. You didn't know 6 that the survey wasn't doing its job until you got your 7 expert.
8 Is that how it adds up? .
9 MS. TALBOT: Well, we knew the survey wasn't doing 10 .its job, because the assessments would have been better if 11 it was, but we just didn't know why.
12 JUDGE SMITH: Yes, all right.
/ 13 MS. TALsOT: I mean, to be frank, I didn't even 14 look for an expert to talk about the'effect of opposition on 15 the adequacy of a survey. l 16 JUDGE SMITH: All right, that's your argument.
17 MS. TALBOT: I mean it wasn't in the phone book.
18 I didn't even look, l 19 JUDGE SMITH: All you knew is that the results,
~
20 you didn't know where the failure was, but the results.
21 H3. TALBOT: Right.
- 1 22 JUDGE SMITH: And you knew that there was some l 23 infirmities in the survey, and that is that the opponents 24 interfered with it. And you knew that it could* be a good 25 survey or a bad survey, but the results were bad. And you !
Heritage Reporting Corporation (202) 628-4888
t s 19979 l'i y
\ 1 didn't know until you consulted with Dr. Dillman that the 2 survey was methodological 1y flawed.
3 MS. TALBOT: Well, in part the reason I didn't 4 know, Your Honor, aside from the fact I'm not an expert, is 5 that Applicants still had yet to give us all the discovery.
6 We had none of the survey discovery in our hands until the
- - 1 7 end of discovery, until whenever it was we got those 8 documents sometime in -- .
9 JUDGE SMITH: Well, that was in October.
10 MS. TALBOT: Was it?
11 It was in the fall some time.
12 JUDGE SMITH: All right.. When did you consult i
g ;N 13 with Dr. Dillman? !
k N- 14 H3. TALBOT: February.
15 JUDGE SMITH: Okay. Do you have anything further 16 to say?
17 MS. TALBOT: Just one more thing, Your Honor.
18 FEMA's report implies, contrary to our contention, 19 that the mail in cards and telephone calls did in fact 20 identify all the people who needed to be identified. And 21 the testimony really simply just seeks to rebut that 22 presumption.
23
- JUDGE SMITH: The testimony rebuts the FEMA 24 findings.
25 MS. TALBOT: Right, in addition to --
'q Heritage Reporting Corporation (202) 628-4888 .
- _ __ _-_= _- _ -.
19980 1 JUDGE SMITH: In addition to the contention.
2 MS. TALBOT: Right, Your Honor.
3 JUDGE SMITH: All right.
4 MS. TALBOT: Granted the contention could have 5 been more artfully drawn if we had had more facts on hand at 6 the time, but it's just not the way it panned out.
7 JUDGE SMITH: So you're rebutting - you are going 8 back to the basic contention, and you' re rebutting FEMA's -- ._.
9 MS. TALBOT: FEMA's J.10.d finding.
10 JUDGE SMITH: All right.
11 Mr. Trout.
12 MR. TROUT: Several points, Your Honor.
,- 13 The first point would be that the specific 14 interrogatory responses that NW. Talbot read into the record 15 are grouped under JI-49, and they deal with testimony, or 16 they are related to testimony that is in fact submitted 17 under JI-49 by Ms. Moriearty in her stand-alone piece of 18 testimony. Applicants have not objected to that across the 19 board. There are a few little sentences that we have
~
20 objected to, a few little words.
21 But the issues raised in JI-49 and in that piece 22 of testimony, Applicants had notice of, and we're not going 23 after that.
24 If we had known, Your Honor, at the outset that 25 JI-48 and its predecessor, which is Mass AG 50, was to be or Heritage Reporting Corporation (202) 628-4888
l f. '
19981
. u,,_s
\ j 1 to include an attack on the survey methodology, we would 2 have argued up front against the admission of that 3 ,
contention in the first place, because it's both the law of 4 this case and the law of the NRC in general that the 5 methodology used by Applicants, a card survey, is 6 sufficient.
7 More than two years ago Judge Hoyt ruled on a 8 motion for summary disposition in this case relating to the 9 New Hampshire survey, and granted the Applicants' summary 10 disposition on precisely that issue. There is also --
11 JUDGE SMITH: On the narrow issue, the use of mail 12 surveys or survey cards?
~
y-~ 13 MR. TROUT: The methodology question, yes, i
14 ' JUDGE SMITH: Well, now, --
15 MR. TROUT: Well, that's righ't.
16 JUDGE SMITH: -- how broad was that ruling? How 17 much did you win there?
18 MR. TROUT: That's right. That's a question - .
19 JUDGE SMITH: Yes.
- 20 MR. TROUT: And I do not have the ruling in front 21 of me. So I cannot say that it's on all four.
~
22 JUDGE SMITH: I think that your ruling was that 23 surveys by mail as such may be an acceptable way as compared 24 to the quality of the questioning and the quality of the 25 identification of the target group and the quality of the y
f Heritage Reporting Corporation (202) 628-4888 l
I I
19982 I
^ '
1 completeness of the responses.
2 MR. TROUT: I understand, Your Honor.
3 The point that I was driving at, Your Honor, is ]
4 the notice point. What prejudice Applicants have suffered l
5 from first finding out that this was going to be the Mass
]
6 AG's attack no sooner than the filing of the prefiled 7 testimony. And the first prejudice is that, Your Honor, 8 that we would have at the contention-admitting stage at .
9 least have scrutinized this contention differently on the 10 question of admissibility. Because if the answer that we 11 had gotten back then was the answer that we got in discovery 12 in December, that mail surveys are no darn good just as a 13 generic matter, then we would have raised the prior ruling
(
14 of this Board and the ruling out of Limerick. It's ALAB-15 836, which I think again is that generic surveys in general, 16 mail surveys in general are good. I'm not sure that it's on 17 all fours with the specific arguments that Dr. Dillman and 18 Ms. Moriearty make in their piece. So that would be, Your 19 Honor, the first question.
~
20 The second question I would raise about not giving 21 us notice until February is, I guess, really an equitable 22 argument. And that is the question of how important to Mass 23 AG this whole issue is.
24 At Your Honor knows, Applicants made an offer to 25 resolve this particular contention and that offer was
(
Heritage Reporting Corporation (202) 628-4888
g s, 19983 V I
'(,/ 1 rejected. And as Your Honor also knows from reading -- you 2 haven't read the discovery responses, but you've read the 3 contention and you've read Basis A. And you know from Basis 4 A that Mass AG was aware that there were opposition groups 5 going around trying-to sabotage the survey.
6 And if you had read the discovery responses, you 4
7 would see that Mass AG had received a telephone call from a ]
1 8 member of one of these opposition groups.saying, yes, we're 9 going around sabotaging, or trying to sabotage the survey.
10 Now I can't say that I know what Mass AG did. I 11 can only tell you that there is no indication whatsoever in 12 their discovery responses that they ever did anything to ps 13 stop that process.
14 MS. TALBOT: Excuse me.
15 What does this have to do with what we're talking i
16 about, Your Honor?
17 I take umbrage at this, this conspiratorial l 1
1 18 paranoia again.
19 JUDGE SMITH: I guess I slipped off your chain of
- 20 logic there. I don't really understand the connection, the 21 relevance either of today's business.
22 You're talking about the opponents to Seabrook 23 sabotaging the survey. Is that what you were talking about?
24 MR. TROUT: Yes, Your Honor.
25 JUDGE SMITH: And then they did nothing to stop
\s ,- Heritage Reporting Corporation (202) 628-4888 l
.1 1
19984 1 it.
2 MR. TROUT: Mass AG knew about it.
3 JUDGE SMITH: But that isn't even an issue. They 4 have lost on that issue. They haven't submitted any 5 evidence on that issue, have they?
6 MR. TROUT: That's right, Your Honor.
7 JUDGE SMITH: Well, I don't think that that is 8 known. ..
9 MR. TROUT: It's a measure, Your Honor, of how 10 important the issue f.s to Mass AG.
11 MS. TALBOT: How do you know what's important to 12 us, Mr. Trout, with all due respect?
13 JUDGE SMITH: Now what do you say about how
(
14 diligent you believe the Attorney General was, or was not 15 diligent, when they learned in February that for the first 16 time we have counsel's representation, for the first time 17 the survey is deficient. Not only is deficient not only 18 because of the efforts of the anti-Seabrook group, but 19 because of its basic logical structure and methodology. l 20 What was their duty at that time assuming that we -
21 would find it within the umbrella of the basic contention 22 and the Basis C, assuming that it would be appropriate 23 testimony and the only question we have is how much notice 24 you have and how timely that notice was?
25 Because I think that they can make an argument i
Heritage Reporting Corporation (202) 628-4888 i
_ ._x
19986
(:
1 JUDGE SMITH: So what we have here then, in your ,
2 view, is not only --
3 MR. TROUT: It's late filed contentions. !
4 JUDGE SMITH: I. ate filed contentions.
5 MR. TROUT Yes, Your Honor.
6 JUDGE SMITH: Late filed Basis.
7 MR. TROUT: Yes.
8 (The Board confers.) ,
9 10 11 12
( 13 14 15 16 17
- 18 19 20 -
21 22 i
23 j 24 25 Heritage Reporting Corporation (202) 628-4888 i
I 4
n , .. .
t l . , -
J19985 Lk' -1 that the basic contentien does cover identification of an 2 assessment of the needs. And Basis C sort of restates it, 3 and that the survey testimony would have been properly 4 within the contention and basis if they had been specific 5 timely that this. survey method was inadequate.
6 Mould you agree that that would be the case?
7 HR. TROUT:. Your Honor, certainly if it had 8 been --
9 JUDGE SMITH: Or much of it, not all of it, but 10 the basic thrust of it.
11 MR. TROUT: If that had been a Basis submitted 12 under Mass AG Contention 50 back in April when the
(- 13 contentions were filed, that would have fit logically under 14 that contention and there would not be this problem today.
15 ' JUDGE SMITH: Okay, so it'does fit.
16 So the question is you didn't get it when you 17 should have got it on discovery.
- 18 MR. : TROUT: Well, we didn't get it as a Basis, 19 Your Honor, to begin with. What we got was a Basis that
. 20 said the survey is bad, and the survey is bad for exactly 21 two reasons.
~
22 JUDGE SMITH: All right.
23 HR. TROUT: One is the opposition groups, and the o R24 other is the suspicion, both directed at Seabrook. And that 25 was the full scope of their attack on the survey.
L
?
\ Heritage Reporting Corporation (202) 628-4888 8
= -' . * * . i
([, ) .
( ,/ 1 JUDGE SMITH: Ms. Talbot?
2 MS. TALBOT: Yes, Your Honor.
3 JUDGE SMITH: The Board is in agreement with the 4 Applicants generally. Instead of just saying.in that 5 shorthand way let's. summarize what the Board believes to be' 6 the situation before us.
7 That the contention itself.was broad enough to 8 have. included.the. attack on the survey. Contention C is l
9 also a-broad one. The inadequacies of the survey, if known, 10 should have been listed as a Basis, separate Basis.
11 The basis that alleges that the' survey is 12 ' inadequate because it's a mail survey. And because it is 13 interfered with by the anti-nuclear groups, would by silence
/
14 suggest that you had no other complaints about the survey 15 -except those named.
16 So there would be every reason to believe by 17 Applicants and the Staff as far as notice is concerned that 18 you had no methodological complaints about the survey as of l
19 the close of discovery. Particularly when you come back and
. .20 you do say on discovery that the method of surveying by mail ]
l 21 is bad. ]
l 22 So as of that time, as of close of discovery you 23 had not put the Applicants on notice as to the issue that 24 you wish to pursue with respect to the survey.
25' Now you have candidly conceded that the bases and
\ ,f Heritage Reporting Corporation (202) 628-4888 .
l
__._L.___'__________ ai_._
l i, .
19988 1 the contentions previously drafted did not focus in on the 2 particular aspects of Dr. Dillman and Ms. Moriearty's 3 criticisms. That you didn't learn about those until you 4 retained Dr. Dillman in February.
l 5 I think that is where we are. This is actually i 6 wrapping it all up. You simply didn't know about the 7 substance of that testimony until February. And I don't
- 8. think you have made a good argument nor do you think that ,
9 you made a good argument that the methodological infirmities 10 of the survey were properly alleged prior to that time.
11 I think what you have here is indeed a late-filed l
12 issue. You're going to have to argue then the standards g 13 that were required to consider. And that's not a matter of 14 discretion, we're required to consider on receiving late-15 filed issues.
16 You are going to have to discuss the Catawba case.
17 You're. going to have to discuss the good cause for late 18 filing, bearing in mind that the survey information was 19 available to you from the outset.
20 You're going to have to discuss the impact it will -
21 have on the proceeding. The contribution you can make to 22 the record. And whether that issue that would be ,
i 23 represented would be taken up by other parties to the i I
24 proceeding. l l
25 All of these are set out in 2.714 of the Rules of l
(
Heritage Reporting Corporation (202) 628-4888 l
~
1 l
- _ _ _ - - - _ _ _ _ l
1 l
1
, 7-~ 19989 ))
t! i
\_,/ 1 Practice. The five basic late filing criteria.
2 Would you elaborate then on why you believe --
3 specifically, what it is that FEMA found, that you believe 4 that you are now timely? And when did FEMA find it, that 5 you believe that you are now timely addressing through this 6 disputed testimony?
7 MS. TALBOT: Your Honor, in FEMA's report on the 8 SPMC in December of 1988 under " Evaluation Criteria J.10,"
9 the actual criteria, as the Board knows, is that the plan 10 has to show means for, " Protecting those persons whose 11 mobility may be impaired due to such factors as 12 institutional or other confinement. These means shall g/ - 13 include notification, support, and assistance in
- 14 implementing protective measures where appropriate."
15 The only part of the rather lengthy statement that 16 FEMA gives in relation to J.10.d. is on page 61 of the SPMC 17 report which says in the end of the third full paragraph:
18 " Lists of persons with special needs are to be maintained.
19 The mailing cards, posters, phone inquiries and personal
- 20 visits, these and other lists of special facilities are to 21 be maintained in Appendix M."
22 So our testimony goes to the fact that we think 23 that these mailing cards, posters, and other efforts did not 24 in fact identify all the people nor did they identify all 25 the needs of all the people who should be dealt with.
. /%
- x_ Heritage Reporting Corporation (202) 628-4888 l
m.______-.___
19990
('
1 If I may go a little further. I'm not at all 2 familiar with arguing about standards for late-filed 3 contentions, but I'm prepared to just --
4 JUDGE SMITH: Well, talk about all excuses you 5 have for not coming up with it until February 21st.
6 MS. TALBOT: The only excuse, Your Honor, is had 7 we had more time -- I'm not saying we should have, I'm just 8 saying if we had had more time. I mean, that's a dead 9 argument. But if we had had more time we would have filed 10 supplemental response to discovery in the form of, you know, 11 this is what we have come up with or whatever. Instead when 12 the shoe dropped on February 21st in lieu of a supplemental 13 response to discovery was in fact testimony of Dr. Don
{ i 14 Dillman and Sharon Moriearty on JI-48.
~ ~ '
15 This goes to identification of individuals in 16 assessment of needs.
17 JUbGE SMITH: And you're representing to the Board 18 that this in the first practical opportunity that the 19 Attorney General had to inform the Board and the parties.
20 M3. TALBOT: Absolutely, Your Honor. -
21 I wish I had kept time sheets of the hours that 22 were put in, in that period. There was no time to come up 23 with additional supplemental answers that would have, you 24 know, maybe preceded this by a day. There was just no time.
25 And I honestly' thought that the text of the
(" Heritage Reporting Corporation (202) 628-4888
- 19991
?!(_,/ .\ 1 testimony fell within the broad language of the actual 2 contention and the broad language of Basis C. I knew that 3 it had nothing to do with some of the specific language of 4 other bases.
5 Your Honor, also, if I might add. I'm sorry for 6 the unanticipated development of this matter. I just want 7 to put on for the record, though, that the issue that this 8 is about -- this is about disabled people. They have no 9 spokesperson in this matter other than me who sits here 10 right now.
11 Mass AG is perfectly willing to allow 12 Applicants --
fy m 13 JUDGE SMITH: Your argument is exactly in
! )
\- / 14 accordance with the five standards for late-filing. Why 15 don't you sort of -- do you have those standards?
16 MS. TALBOT: Yes.
17 JUDGE SMITH: On page 71.
18 MS. TALBOT: Your Honor, I.would just as soon, you 19 know, I would rather not take any time. I would rather do
. 20 it now.
21 JUDGE SMITH: No. If this testimony is important 22 to you, you take the time that you need.
23 I'm pointing out to you how you should organize 24 your argument. How we are hearing your argument. And what 25 you're saying, as I understand it, that if you don't do this
.73 k ,,l Heritage Reporting Corporation (202) 628-4888 i
I
___-_:____-_~..-
i 19992 f 1 it won't be done. And therefore, category number three, to 2 the extent to which your participation may reasonably be i l
3 expected to assist in developing a sound record should be I 4 scored on your behalf.
5 MS. TALBOT: Absolutely, Your Honor.
6 It won't get in the record if I don't put it in.
7 The Applicants won't put it in.
8 JUDGE SMITH: Are there any other means by which '
i 9 the Attorney General's interest will be protected in this 10 hearing?
11 MS. TALBOT: Well, to the extent that the Attorney 12 General represents the disabled in the EPZ community the 13 Attorney General's interests are affected by not --
{'
14 JUDGE SMITH: No. But is there any other means? ;
4 15 MS. TALBOT: Oh, any other way of doing it?
16 JUDGE SMITH: Yes. Right.
17 MS. TALBOT: None that I can think of unless you 18 can tell me one and then I will do that.
19 JUDGE SMITH: It just ~%n't be represented by 20 other parties. .
21 MS. TALBOT: Absolutely not.
22 JUDGE SMITH: Now will it broaden the issues or 23 delay the proceeding?
24 MS. TALBOT: Oh, Your Honor, I think it will --
25 no, it won't broaden the issue or delay the proceeding, on
(
Heritage Repcrting Corporation (202) 628-4888
gg- 19993
(!
)
x_/ 1 the contrary. We can get to it right now and it will be 2 done and put to bed and it will have been -- except if we 3 want to give the Applicants more time to respond.
4 I just want to point out to the Board that they 5 did retain a professional survey person that did the survey.
6 In their answers to our interrogatories they mention the 7 name of two people that oversaw the survey. Why those 8 people aren't on their panel in the rebuttal, I don't know.
9 I'm just saying that we're perfectly willing to 10 give Applicants more time to find, you know, an expert, if 11 in fact they can find one, who will defend the methodology 12 and results of the survey. That's the only thing that would p'^s 13 take more time.
- 1
\- ' 14 JUDGE SMITH: Do you have anything else to add?
15 MS. TALBOT: Just, Your Honor, again, if this 16 issue doesn't get aired today it won't get aired. And, I o 17 think that of all the issues that are in this case, to me, 18 this is the most important. Because it's about people that 19 don't have, you know, I'm the only spokesperson for this,
. 20 for these people in this proceeding. And if it doesn't get 21 in the record it's really -- it's a shame.
22 MS. CHAN: Your Honor, the Staff would like to 23 make note of its response on the 27th of May 1988 which is 24 11 months ago in response to Mass AG Contention 50 which is 25 the basis of the current JI Contention 48.
rs
(_) Heritage Reporting Corporation (202) 628-4888 .
4
L l
19994 1 The Staff had opposed the admission of the 2 contention on all the bases on which it was based.
3 Specifically the Staff stated, quote: " Basis C is overly 4 vague because it provides no explanation of what additional 5 information it is alleged that the utility should obtain 6 about the special needs resident population."
7 I think at this time if the Mass AG had read the 8 Staff's response they would have known there was some .
9 question as to the specifics of how they were planning to 10 obtain additional information about the special needs 11 population. And this was some notice over almost a year 12 ago. That at least the Staff questioned what deficiency the
, 13 Mass AG was pointing to.
14 JUDGE SMITH: Mr. T. rout?
15 MR. TROUT: Your Honor, on the five factor test.
16 JUDGE SMITH: Take in your argument, too, address 17 the response to FEMA's finding. The timeliness of the 18 response to FEMA's finding, too.
19 MR. TROUT: Okay, Your Honor.
20 I'm having a little difficulty figuring how FEMA's 21 finding would give Mass AG -- would broaden the contentions .
22 that Mass AG had already filed.
23 JUDGE SMITH: Well, we've had trouble with that 24 concept, too. If you can put some light on it, it would be 25 helpful.
Heritage Reporting Corporation (202) 628-4888
l 19995 I6
'\ ,) 1 MR. TROUT: Well, Your Honor, the contention --
2 the Board is here to litigate the contentions that were 3
'l 3- submitted by the Interveners. And there has been a finding' 1 4 Hby FEMA of adequacy across the board as to all the criteria i
5 by which FEMA, as a regulatory agency, has to test the SPMC i 6 and has to test :ae exercise performance.
7 But we are not here to litigate every single 8 finding and subfinding in that FEMA report. We are here to 9 litigate the contentions that were submitted by the 10 Intervonors back in --
11 JUDGE SMITH: You' re relying upon FEMA's finding, 12 J.107 4 13 MR. TROUT: Yes, Your Honor, we are.
.O 14 JUDGE SMITH: I don't have it handy here. But 15 you're relying upon it. You want us to find that it does 16 the job.
17 MR. TROUT: That's right.
18 JUDGE SMITH: And they have surrebuttal testimony 19 to it.
. 20 MR. TROUT: Yes, Your Honor, we are relying on the 21 FEMA finding. And we're relying on the FEMA finding for the 22 purpose of this litigation to the extent that part of that 23 FEMA finding goes to the issues that were raised.
24 Now what has developed is a situation wnere 25 another part of that FEMA finding would be implicated by
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i 19996 1 this late-filed issue of Mass AG. ,
2 It's the same little subfinding, but the issues 3 have been broadened. And we're still relying on the FEMA 4 finding.
5 But my difficulty is that I hear the Mass AG 6 arguing that they're here to litigate the FEMA finding of 7 adequacy and the. anything that's in the FEMA finding of 8 adequacy is fair gr.me. Because the FEMA finding of adequacy ,
9 didn't come out unt!1 later.
10 I don't understand how that argument can work 11 conceptually when the purpose of these hearings has been all 12 along to litigate the Interveners' contentions.
( 13 The FEMA finding has had certain evidentiary and 14 procedural significance. But the scope of the litigation is 15 and will always be the contentions file'd by the Interveners.
16 JUDGE SMITH: So you' re relying upon FEMA's 17 findings only to the extent that they address the properly 18 admitted contentions?
19 MR. TROUT: For the purposes of this litigation.
20 JUDGE SMITH: So the fact that FEMA made findings -
21 with respect to J.10 as to which they rebut doesn't do any 22 good because you would not have relied upon that aspect of 23 FEMA's finding anyway because it was not in issue.
24 MR. TROUT: Yes, Your Honor, again, for the 25 purposes of this litigation.
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1 I mean, obviously we rely --
2- JUDGE SMITH: Before this Board.
3 MR.-TROUT: Right. Yes.
4 To briefly go through the five factors, Your 5 Honor,'I see three of the five including the first one, the 6 most important one, as weighing against Mass AG.
7 The first being good cause, if any, for failure to 8 file on time. The contentions were drawn up at the 9 beginning 92 last year. They were filed in April. There 10 was a period from the end of July, after the Board had. ruled 11 on all the contentions, and discovery opened and Applicants 12 made all their' documents available. To the extent that the documents had not previously been made available and some of
~
, 13
}p 14 them had been made available previously. That was why we had of course the protective order'in t'his case.
15 16 Some documents were made available in February; 17 the rest were made available shortly after the end of July 18 when discovery was opened.
19 Mass AG has had Applicants' documents for many
. 20 months. Frankly, I cannot as I sit here, Your Honor, tell 21 you when these particular documents were made available.
22 MS. TALBOT: Sometime in the fall.
23 MR. TROUT: Well, they were examined bf Mass AG 24 sometime in the fall. And I think short of going back and 25 looking at the records that may be the best we can do at if Heritage Reporting Corporation (202) 628-4888 .
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1 this point in time.
2 The other information, the information in the 3 testimony which is not dependent on looking at Applicants 4 information. For example, the census information, the 5 Commonwealth and the Ma ss AG presumably had that also for 6 quite some time.
7 I don't want to be in the position of Applicants 8 criticizing the efforts of individual members of the -
9 Attorney General's Office. We don't J ike to do that. And 10 it's not nice and it's not appropriate.
11 But the position of the Attorney General -- the 12 Attorney General's Office as an institution has elected to
( 13 pursue this litigation in a manner that is broad and across 14 the board. They have launched a campaign on every front.
15 And that's fine. That's their right.
16 But as we have argued to this Board before, having 17 made that election they then have to meet their obligations. !
18 And they just have not in this case met their obligation to 19 decide what issues they want to litigate in a timely 20 fashion. So that goes to the first issue.
21 MS. TALBOT: Excuse me, I'm lost.
22 What does this address?
~
23 JUDGE SMITH: Good cause.
24 MR. TROUT: Good cause.
25 MS. TAI. BOT: Oh, okay.
l e~
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'x._,-) 1 MR. TROUT,: The second of the five factors that 2 is, " Availability of'other means whereby the petitioner's 3 interest will be protected."
4 Your Honor, with all due respect this goes back to 5 something I adverted to earlier. Applicants offered to do a 6 Dillman survey.
7 MS. TALBOT: Your Honor, I object. I object.
8 This is a total misrepresentation. You did not 9 have the Dillman testimony in your hands at the time of that 10 negotiation.
11 MR. TROUT: It was hers in the courtroom. It was 12 after the testimony was filed.
s 13 JUDGE COLE: That's true, Ms. Talbot.
g!, )
\--# 14 MS. TALBO?: Excuse me?
15 JUDGE COLE: That's true, Ms. Talbot.
16 MS. TALBOT: I wasn't here then.
17 MR. TROUT: The, third of the five factors is, "The 18 extent to which the petitioner" --
19 JUDGE SMITH: Could you refresh us. What was the
- 20 nature of that offer? To have Dr. Dillman do the survey or 21 just use his methodology?
~
22 MR. TROUT To have a survey performed using 23 methodology approved by the Attorney General's Office. If 24 the Attorney General wanted us to use Dr. Dillman, we use 25 Dr. Dillman or whoever else Mass AG wanted. But we do the
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I survey the, way they wanted the survey done. And that offer 2 was rejected.
3 I believe the rationale for cejecting it is the 4 rationale that has been articulated several times in this 5 case which is, the Commonwealth is not engaged in planning.
6 MS. DOUGHTY: Excuse me.
7 I believe there is a condition atteched to that 8 offer which was that the Applicants could go to five percent ,
9 power before the survey was done.
10 JUDGE SMITH: No, no.
11 MS. DOUGHTY: Up to five percent power. That's my 12 recollection of what Mr. Dignan said. Now I could be wrong.
13 JUDGE SMITH: I think that the --
(
14 MR.' TROUT: The condition was withdrawal of the 15 contention, obviously.
16 JUDGE SMITH: I think what he said was -- what do 17 you think he said?
18 MR. TROUT: Oh. This is not a five percent 19 contention. This is a full power contention.
20 JUDGE SMITH: I understand that. -
21 But he did put it in context of five percent of 22 power. Do you recall what he said?
23 MS. SELLECK: I believe he said, prior to full 24 power operation.
25 JUDGE SMITH: Prior to full power.
O Heritage Reporting Corporation (202) 628-4888
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'k, 1 MS. SELLECK: That we would do a methodology 2 survey.
3 JUDGE McCOLLOM: Prior to what?
4 MS. SELLECK: Full power operation.
5 MR. TROUT: Full power operation.
6 JUDGE McCOLLOM: Full power.
~
7 MR. FIERCE: That's unacceptable --
8 MS. SELLECK: I don't recall Mr. Traficonte saying 9 that was his stumbling block. I do recall Ms. Doughty 10 bringing up the issue.
11 MR. FIERCE: I wasn't here, Your Honor, but if it 12 was made conditional that a full power license could be
(,-~ 13 granted and then the survey could proceed, I can say on
(
s- 14 behalf of Mass Attorney's Office --
15 MS. S'ELLECK: No, no.
16 MR. TROUT: No. It was prior to full power
. 17 operation.
18 MS. SELLECK: Prior to full power operation as 19 opposed to prior to five percent operation.
. 20 JUDGE SMITH: Let's go ahead.
21 MR. FIERCE: But we may be able to talk some more 22 about this. If it's prior to full power operation, we may 23 have discussion we can ensue in.
24 JUDGE SMITH: Would you repeat what you said?
25 MR. FIERCE: There may be a negotiation we can (D
(. Heritage Reporting Corporation (202) 628-4888 4 '
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1 engage in if the survey that they are indicating they would 2 be willing to undertake would have to be completed such that j 3 the data would be in hand prior to full power operation 4 license being granted.
5 JUDGE SMITH: You think there's room for a 6 settlement of that?
7 MR. FIERCE: There is certainly room to talk on 8 the issue of a proper survey for the handicapped and special ,
9 needs.
10 JUDGE SMITH: All right.
11 MR. TROUT: Well, I would go on, Your Honor, to 12 the third criteria.
p 13 ,
JUDGE SMITH: Just for completeness right now and 14 then let's return to the other point. There is no other 15 means -- I mean, no other petitioner -- no other way that 16 this particular adjudication would have the record developed 17 in the absence of this contention. You're not going to 18 argue that, are you?
19 Well, go ahead and argue. Just go ahead and 20 argue. .
21 MR. TROUT: No, Your Honor, I'm not going to argue 22 that the issue would be litigated. No. Certainly not.
JUDGE SMITH:
23 And it won't be represented by 24 existing parties.
25 MR. TROUT: The issue; right.
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20003 1f)
" k ,/, JUDGE SMITH: .The extent to which it will' broaden 1.
2 the issues or delay'the proceeding is. pretty _self-evident.
3 It certainly would broaden the issue over, if it's not in by 4 that amount.
5 MR. TROUT: Yes.
6 JU)GE' SMITH: And the amount of P.ime it takes to 7 hear cross-examine, rebut, and decide would delay the 8 hearing. ,
9 MR. TROUT: Yes.
10 JUDGE CMITH: Okay.
11 MS. TALBOT: Your Honor, can I just -- since I.
12 have looked at this a little closely I-may have spoken too 13 quickly before.
t
'\ 14 JUDGE SMITH: Wait a minute.
15 (Board reviewing transcript.)
16 JUDGE SMITH: M.
r Dignan did put in a commitment 17 that they would do a Dillman survey before five percent of 18 power. .
19 Now I understood him to say or to be saying there
. 20 that they would adopt the methodology proposed by Dr.
21 Dillman. I didn't hear him elaborate. l
" 'l 22 Where are we on this possibility?
23 MS. SELLECK: Your Honor, I believe the offer was 24 not accepted. That's where it stands.
25 MS. TALBOT: I think it was put in limbo.
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I 1 "9 SELLECK: Your Honor, I think it was not 2 accepted.
3 JUDGE SMITH: All right. The offer wasn't 4 accepted, I understand that.
6 Are you saying the offer is irrelevant?
6 MS. SELLECK: Your Honor, can I have a moment to 7 ask my client if I can -- what representation I can make.
8 JUDGE SMITE: Why don't we take a short break here ,
9 and see exactly where we are on this particular point.
10 Fifteen minutes.
11 (Whereupon, a 15 minute recess was taken.)
12 s 13
- 14 15 16 17 18 19 20 -
21 22 23 24 25
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Heritage Reporting Corporation (202) 628-4888 i
_g 20005 1 JUDGE SMITH: The Board began, as we stated we 2' would, we bengan with the proposition that the testimony 3 should be considered as a. late filed issue under the five 4 factors. .
5 And looking at the first one, a. good cause-for 6 late filing, we looked at the statement that the Attorney 7 General did not learn of the methodological inadequacies 8 until they consulted with their expert, we don't believe 9 that information learned from an expert after the close of 10 discovery is the type of late available information that is 11 normally regarded as supporting good causa for late filing.
12 We have several things about that we didn't understand, in 13 addition, and that is, Dr. Dillman is clearly an expert on 14 methodology; why was he consulted?
15 Apparently there was a concept by the Attorney 16 General that the methodology of the survey would be an issue 17 that they wanted to pursue. But in any event, you can't
.10 frame-your contentions, go through discovery, get an 19 extension on discovery, wait until discovery closes, and
. 20 then, in preparation for your testimony, then and only then 21 consult with an expert as to what the basis of your concerns
~
22 are. That's much too late. That is rmt good cause.
23 We have also looked at the FEMA report to see if 24 there was anything in there that would generate good cause 25 for late filing, and we agree there was two aspects of that.
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1 We agree with Mr. Trout that they are relying upon the FEMA 2 report only for issues properly raised by Interveners' 3 contentions and bases. To any extent that the FEMA report 4 goes beyond that, it is irrelevant.
5 However, we went farther than that. We looked at 6 FEMA's J.10.d finding with respect to notification of the 7 special needs people. We saw nothing in there which in 8 itself would have triggered for the first time an inquiry by .
9 the Attorney General into the methodological adi-quacy of the 10 surveys.
11 We don't believe that there is, in the traditional 12 sense in NRC adjudications, good cause for the late filing 13 of an issue based upon the adequacy of the surveys other 14 than those inadequacies which were alleged in the Basis or 15 responded to in the interrogatory, which is not relevant to 16 the Dillman-Moriearty testimony before us.
)
I 17 The other issue, however, and that is, whether the '
18 matter will be developed or pursued by anybody else if the 19 Attorney General does not do it, would weigh in favor of 20 receiving the testimony. The fact that it would broaden the 21 hearing and delay it would weigh against it. Normally when 22 you find that there is no good cause for late filing, it 23 becomes much more difficult to establish your late fi' ling 24 case based upon the other factors.
25 Having said all of that, I guess if we were going
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L k_,/ 1' to apply in a cold surgeon-like application Commission 2 precedent, we would have to find that the testimony cannot 3 be received and that it's not justified under'the five 4 factors.
5 But we're not quite willing to let it go at that.
6 We think that Dr. Dillman'a credentials are excellent. We 7 haven't seen it as a Board, but I have some difficulties 8 with his analysis. I also have some difficulties with Ms.
9 Moriearty's. analysis. The thing that the Board is focusing 10 on more than anything else is the importance of this issue.
11 This issue is as important as any issue which can be faced, 12 and we have an interest in having either the matter resolved 4
13 to the best satisfaction possible for the public health and ,
1
\- 14 safety, or resolved to the satisfaction of the Interveners.
15 So we're taking some extra liberties on this 16 issue, and as a matter of Board discretion we're going to 17 try to push a negotiation.along the lines suggested by Mr.
18 .Dignan. Even though Applicants might be entitled to prevail 19 on this point purely as a matter of precedence, the Board is
. 20 taking into account that this is a very important issue. We 21 think that there is a possibility of a contribution by Dr.
22 Dillman and Ms. Moriearty, and that possibility should not 23 be wasted if it is really'available.
24 We also recognize that in this instance, without 25 waiving the position, the Attorney General has not fallen N
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20008 1 back on the stated position that they simply refused to 2 participate in planning. I think we have here a situation 3 where you don't have to say one way or the other. We may 4 have a situation here where you want the issue resolved to 5 the best satisfaction no matter how it affects your 6 litigative position.
7 Would that be fair to say?
8 MS. TALBOT: Yes, Your Honor. ,
9 JUDGE SMITH: So I think what we have here then is 10 the only time that I have been able to identify specifically 11 is a willingness to participate in the improvement of the 12 plan, c 13 Without detriment to your position all over the 1
i 14 place, which you made amply clear, but because of the 15 special tender nature of this problem no matter how the 16 litigation comes out, you want to make sure this problem is 17 taken care of as well as it can.
18 MS. TALBOT: That's right, Your Honor.
19 JUDGE SMITH: Is that right?
20 MS. TALBOT: That's right. - >
21 JUDGE SMITH: You represent that.
22 MS. TALBOT: But, of course, there would have to 23 be a check and balance in that, too. If Applicants were to 24 do an appropriate or a Dillman-type survey, Mass AG would 25 still like to reserve the right to be able to look at the j
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ss ) 1 results of that and raise any contention if -- you know, I
, 2 sort of hear these --
3 MR. DIGNAN: That takes the offer off the 4 table'--
5 MS. TALBOT: -- inarticulate moans.
6 MR. DIGNAN: -- as far as I'm concerned, Your 7 Honor, right there.
8 MS. TALBOT: It's a legitimate offer, Mr. Dignan.
9 JUDGE SMITH: Well, wait a minute. In the first 10 place, the Board's at a loss here, because we don't even 11 know what a Dillman-like survey is. The only thing we know 12- is we'vw read the testimony, and they have spent some time
(,F~s 13 and attention to their concerns about it. And we don't itave I
\~ ')' 14 any idea of-what the offer really is and what the 15 negotiation might be.
16 But one thing we're concerned about is that a word
- 17. spoken without thorough consideration will suddenly result 18 in the withdrawal of the offer. It's more important than 19 that, Mr. Dignan.
. 20 MR. DIGNAN: Well, Your Honor, you see I don't 21 think my sister spoke it without consideration, because this 22 is exactly the position that was taken when I put the offer 23 on the table. '
24 First of all, and I apologize that I'm speaking 25 not having been here this morning. If I say anything at Heritage Reporting Corporation (202) 628-4888
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? l 1 variance with what happened this morning, it's just a !
2 failure of communication on my part.
1 3 But the point is this. When I put the offer on 4 the table, first of all, the offer as it was put on the 1
5 table, to remove any doubt, was it would be a license 6 condition concerning above 5 percent power operation. It 7 was never an offer to affect the low power license. And if 8 anybody doubts that, they can review the transcript. _
9 The second thing is this.
10 JUDGE SMITH: Would you explain that better?
11 MR. DIGNAN: Yes, Your Honor.
12 When I put the offer on the table the first time, 13 I said we would take a license condition that we would do a
(
14 Dillman-type survey before going above 5 percent. In other
~
15 words, it was never offered as a condit' ion to our operating 16 the plant at low power. In other words, at 5 percent --
17 doing the 5 percent testing. .
18 JUDGE COLE: Yes. That's at transcript page I 19 18166.
20 MR. DIGNAN: Yes. -
21 JUDGE SMITH: I'm sorry, but I just don't 22 understand what those words mean. '
23 MR. DIGNAN: Well, Your Honor, we have now 24 authorization, as you know, subject to some resolution of 25 financial qualification matters, to operate the plant up to
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'Q 5 percent of power.
2 JUDGE SMITH: Yes.
3 MR. DIGNAN: And do low power testing.
4 My understanding is that there was a suggestion 5 this morning, and if there wasn't, I don't bring this up, 6 that the offer I had made is to condition our operating at 7 low power on doing the Dillman survey, and that was never my 8 offer.
9 My offer was to condition the license that we 10 would not operate above 5 percent power before doing a 11 Dillman survey.
12 MS. TALBOT: If that was construed as our offer (p s 13 before, it's not our offer now.
14 JUDGE SMITH: Let's take a break. They are going 15 to have to exp1'ain this to me.
16 (whereupon, a recess was taken.)
17 18 19
.- 20 21 22 23 .
23 25 f
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- 20012 1 JUDGE SMITH: Mr. Dignan, none of us heard your 2 remarks the same way. So would you say them again?
3 MR. DIGNAN: Here -- and I'm not sure it's a !
4 problem any more after talking to my sister over there.
5 I understood this morning the suggestion was made 6 that the offer that was put on the table was to conditien 7 not only the full power license on doing this survey --
8 correct, the full power operation. ,
9 JUDGE SMITH: Yes. j 10 MR. DIGNAN: But, in addition, that we couldn't do 11 low power operation either until the survey was done.
12 JUDGE SMITH: ,
No. No, just go above it.
g 13 MR. DIGNAN: Right. That's right. It was just to i
14 go above it.
~
15 JUDGE SMITH: Right.
16 MR. DIGNAN: And I want to just get that clear, 1 17 and I guess the AG's office was clear, too, that nobody 18 understood my offer to condition the low power operation.
i 19 Now having that out of the way, the reason I 20 jumped in, and it was just to take an offer off the table, .
l 21 is because my sister was quite consistent with what I heard
- l 22 when I put the offer on the table. l l
23 What they want to do in two things. Well, what 24 they want to do is one thing. They want the right, after 25 the survey is done, and keep in mind it will take some time
(
Heritage Reporting Corporation (202) 628-4888 I l L_mu_._ _ _ _ _ _ _ _ l
H 20013 1 to do the' survey.
2 JUDGE SMITH: Yes, I understand that.
3 MR. DIGNAN: They want the right to then come in 4 and open up the issue if they don't like the way the survey 5 was run.
6 JUDGE SMITH: That's right.
7 MR. DIGNAN: And I would rather litigate it now.
8 JUDGE SMITH: Just wait a minute, because we ._.
9 didn't get that far yet.
10 NR. DIGNAN: Okay.
11 JUDGE SMITH: We recognized as soon as that was.
12 said the mischief that that could cause.
13 MR. DIGNAN: All right, fine.
14 JUDGE SMITH: And you could come back in, you are if all ready to crank' her up.
16 MR. DIGNAN: Okay.
17 JUDGE SMITH: And they say, no, Dillman bad, bad 18 Dillman.
19 MR. DIGNAN: Bad Dillman.
. 20 JUDGE SMITH: And here we go, back up here, and we 21 start and we file briefs and everything else.
22 Is that what you are worried about?
23 MR. DIGNAN: That's one thing I'm worried about.
24 JUDGE SMITH: That's what you're worried about. "
25 MR. DIGNAN: And there is a second thing I'm f
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20014 t.
I worried about.
2 In the exchange with the Attorney General, you 3 took the position that they wouldn't have to plan, and I'm 4 not trying to make them plan. But I want you to understand 5 one thing. Any settlement of this thing whereby we agree to 6 do a survey as we look at the Dillman-type survey, we have 7 to have the cooperation of the Commonwealth and its 8 political subdivisions to do such a survey. And so a .. .
9 condition has got to be that they will cooperate with us in 10 the survey.
11 JUDGE SMITH: With this one issue.
12 -
MR. DIGNAN: That's right.
13 JUDGE SMITH: That they don't walk away from
(~
14 their --
I'm not trying t'o hook them into an 15 MR. DIGNAN:
16 admission for the rest of the case. But the settlement has 17 got to include a stipulation that the Commonwealth will 18 cooperate in the doing of the survey.
19 MS. TALBOT: In doing what, though? I don't see 20 what we have to do if you have your survey guys out there.
21 MR. DIGNAN: Because as I understand it, and I'm 22 not an expert, Dr. Dillman calls for certain things to be 23 done that our people can only do if they have the 24 cooperation of the Commonwealth and its political j 25 subdivisions --
t
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20015 1 QD d 'l MS. TALBOT: . Likg what?
2 .MR. DIGNAN: -- and the encouragement of private 3 entities to cooperate with us from the Commonwealth, because 4 otherwise we will get the same turndowns we've gotten 5 before.
6 MS. TALBOT: But like what?
7 MR. DIGNAN: Like what?
8 Like answering questions. ,
9 MS. TALBOT: The private individuals -- no, Mr.
10 Dignan. I mean, I don't see the connection. I'm not trying 11 to belabor this or confuse the issue. I just don't see the 12 connection.
13 MR. DIGNAN: Well, if you don't see the i
14 connection, my people do. And I don't pretend to want to 15 see or not see the connection, because I'm not expert enough 16 to know. But my people tell me --
17 MS. TALBOT: Maybe we should ask Mr. Dillman. I'm 18 not expert enough to know either whether state participation 19 is necessary to conduct a survey.
. 20 I would like to let the Board know, though, that 21 if Applicants are concerned about sabotage, we'll stipulate 22 right now on the record that we would never challenge that 23 as a basis in any future contention, nor is it necessary 24 that there would be future contentions, Mr. Dignan, if the 25 survey identified the people in the EPZ and appropriately l
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(,
1 determine the neeps.
i 2 MR. DIGNAN: Ms. Talbot, I do not doubt your good i 3 faith, all right, your personal good faith. The approach of 1
4 the Commonwealth in this case, as articulated very well by l l
5 Mr. Traficonte, is to do what it takes to stop this plant. j 6 I am not prepared to make an offer that will give you a 7 second bite at this apple after the survey is done, and it's 8 that simple. i 9 MS. TALBOT: Your Honor, just for the record I j 10 would like to just make the offer and make it clear that an 11, appropriate survey be done prior to full power licensing, 12 that Interveners get to view the results, and challenge if
({ , 13 and only if necessary, and that Interveners would never 14 assert as any basis to any potential future filed contention 15 anything concerning " sabotage".
16 JUDGE SMITH: I didn't understand what you said.
17 NE. TALBOT: I was just sort of framing the offer 18 concisely for the record. l l
19 JUDGE SMITH: Well, I know, for the record, but !
20 for right now just assume we're the same as the record. 1 l
21 MS. TALBOT: Oh, okay. I 22 JUDGE SMITH: We want to understand what you are
~
l 23 saying, too.
l 24 MS. TALBOT: Here's the deal. For the record, we 1 25 are prepared to make the following offer: That an Heritage Reporting Corporation (202) 628-4888 O. l l
1 20017
( l' appropriate survey be done by the Applicants, or a Dillman-2 . type survoy, if that makes it more understandable; that this 4
3 be done prior to full power licensing; that Interveners are 4 allowed to.see the results; and only if necessary, to 5 challenge those results in the form of contention. And that
- 6. because Applicants --
7 JUDGE SMITH: In a reopened litigation.
8 MS. TALBOT: Well, does Your Honor appreciate the 9 fact that we have to have that handle?
10' JUDGE SMITH: I know.
11 MS. TALBOT: I mean, they don't trust us and we 12 don't trust them.
9- 13 JUDGE SMITH: Right. All right.
14 MS. TALBOT: It's. unfortunate, but --
15 JUDGE SMITH: I understand, but I think that when 16 we point these things out and then we might find something 17 that is acceptable to both sides. -
.18 MS. TALBOT: Okay.
19 JUDGE SMITH: Now the shortfall, of course, is the
. 20 one we just tested; that you would be holding veto power --
21 MS. TALBOT: Right.
~
22 JUDGE SMITH: -- over the fall power operation, 23 and you could at a late date say, we're not happy. Here's 24 our contention as to the inadequacy of the implementation of 25 the Dillman survey. And under this stipulation a full power
(.
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[ , .,
1 authorization would be delayed while this Board resolved the 2 matter.
3 MS. TALBOT: Or if they went back and brought the 4 survey up to par.
5 JUDGE SMITH: But in the last analysis the 6 Attorney General would be sitting there with the power to 7 approve or withhold approval of the effort, which would be 8 the same power as approving or withholding approwal of a ,
9 full power license. And Mr. Dignan, I'm sure, will never 10 agree to that.
11 MS. TALBOT: But isn't it ultimately your 12 decision?
13 JUDGE SMITH: Particularly in view of the fact 14 that several stipulations that have been entered into have 15 fallen apart in the implementation when there has been 16 arguments as to what they meant. And so I just don't think 17 we would ever convince Mr. Dignan to turn over the short-18 term ability to win the right to operate that plant to you.
19 I just don't think that he would agree.
20 MS. TALBOT: But isn't it ultimately your -
21 decision, Your Honor, not mine?
22 JUDGE SMITH: Well, right. But if you file a 23 contention in October or whenever, or May, or June, or July 24 saying they have not abided by the stipulation, and we want 25- contentions and we want litigation rf the contentions, and Heritage Reporting Corporation (202) 628-4888 l l
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'\_ ,/ 1 we want evidence and we want proposed findings and a
[ 2 decision, you are asking more than I think the Applicants 3 would be willing to give.
4 MS. TALBOT: Your Honor, we can't just let them do 5 any old thing. The last survey they did, you know, and I'll 6 let Your Honor read the executive summary of that survey, 7 there's a disclaimer on it.
8 JUDGE SMITH: Would you be willing then to do it 9 under a circumstance in which full power would not be an 10 issue, but the Applicants would agree in advance to abide by 11 Board rulings as to how the survey has to be implemented?
12 MS. TALBOT: They have to have the names before
(? s 13 full power, Your Honor.
I As" l'4 JUDGE SMITH: Well, then, I don't think you are 15 making a proposal that they will ever accept. I mean, they 16 just can't accept it. I mean, I don't think you can. They 17 already turned it down.
18 While you were conferring, Mr. Dignan, a proposal 19 that I made was rejected was that there be no condition of
. 20 full power. However, the Applicants agree in advance that 21 if they bring the matter, the Board would retain 22 jurisdiction even if we were to issue a full power license 1
23 to appre.re the implementation of the Dillman survey. And l l
24 they won't do that.
25 MR. DIGNAN: In other words, as I understood the 6O l
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20020 1 suggestion of the Board, it would have been -- the 2 settlement essentially then would have been this. That the 3 Applicants would go out and do the Dillman-type survey.
4 JUDGE SMITH: Subject to our approval.
5 MR. DIGNAN: Subject to your reservation of 6 jurisdiction which reservation you are already saying would 7 not be license-blocking.
8 JUDGE SMITH: That's right. , ;
9 MR. DIGNAN: That is to say, it would be the same l 10 thing as if a remand came down to the Board.
11 JUDGE SMITH: Exactly.
12 MR. DIGNAN: And in the Board's judgment the
- "p 13 remanded issue was not one that required the picking up of 14 an already issued license. And, therefore, that the plant
~
15 would continue to operate while we litigated what they 16 wanted to. And in addition, after that litigation, we would 17 then, I assume, be subject to the Board telling us you do it 18 this way.
- 19. JUDGE SMITH: Better.
20 MR. DIGNAN: Or something will befall you. -
21 JUDGE SMITH: Right.
22 MR. DIGNAN: That kind of offer would sell me.
23 MS. TALBOT: Except then the plant is licensed 'and 24 there is no list and there is no adequate protection.
25 JUDGE SMITH: That's right. So you won't accept
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2 MS. TALBOT:- I feel'11ke we can't.
3 JUDGE SMITH: All'right. So I' don't know what 4 else. .The most powerful hold that you would have would be 5 to approve or disapprove blocking license. The second most' 6 powerful thing available to you is to have a condition upon 7 Board approval on a.nonlicense-blocking thing, which'after 8 the fact we could say do it better or shut down. But.that 9 is a second most powerful' thing that is available to you, 10 and you've rejected that. And you are certainly not going 11 to accept anything less powerful than-that, are you?
12 So the only thing you are willing to accept is no ge 13 full power unless you are happy with their, modification of 4
, 14 the survey.
15 MS. TALBOT: Unless they have the list of the 16 names with - yes..
17 JUDGE SMITH: Unless you are happy with that.
18 MS. TALBOT: Yes. Well, it wouldn't be us. It 19 would be the experts.
. 20 JUDGE SMITH: Well, whatever. But as a party --
21 MS. TALBOT: Right.
22 JUDGE SMITH: -- you would have to come back in 23 and give, based upon the advice of yo r experts, your 24 approval before the full power ticket could issue.
25 MS. TALBOT: I just feel like we could never agree b
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20022 1 to let the balloon go up without a list.
2 JUDGE SMITH: And you won't put it in the hands of 3 the Licensing Board.
4 MR. FIERCE: I think we would like to put it in 5 the hands of the Licensing Board, Your Honor. I think the 6 critical point is will the plant operate for a day --
7 JUDGE SMITH: Yes.
8 MR. FIERCE: -- without a list of the handa. capped ,
9 people. And under your second proposal, it would.
10 JUDGE SMITH: It could.
11 MR. FIERCE: And that's where we just can't go 12 farther because of the protection that we think needs to be p; 13 in place for the handicapped prior to operating at full 14 power, and that's the only difference.
13 We trust the Board. We would like the Board to 16 have an opportunity to decide this issue. We've got the 17 testimony here today. If we filed contentions at that time, 18 we again put it in the hands of the Board where it belongs.
19 JUDGE SMITH: They could possibly sweeten it up a 1 20 little bit if they were to commit to completing the survey -
21 that they believe meets the requirements, that they believe 22 meets the requirements of your expert before they would go 23 to full power, but leaving it to the Board to decide, 24 without regard to full power, whether it does in fact meet 25 it.
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'. 1 They are not going to turn over the key to that 2 plant to you. I can see that. They never will do that.
3 MR. DIGNAN: Your Honor, could I put another 4 counteroffer on the table?
5 JUDGE SMITH: Mr. Dignan?
6 MR. DIGNAN: What if I committed the Applicant to 7 hiring Dr. Dillman and doing a survey that Dr. Dillman 8 approves, but I will not take a license-condition or 9 anything else?
10 We will hire and pay Dr. Dillman to design a 11 survey for us. And I would agree to execute whatever he 12 designed. In other words, what I won't agree is to let the rs 13 completion of that or anything else block power operation.
\ 14 But I would commit the client -- I am authorized to commit 15 the client that we would hire, pay Dr. Dillmaa his stormal 16 fees, take whatever suggestions he had or his design of the 17 survey and execute it as he designed it.
18 . JUDGE SMITH: Now look down the road a little bit.
19 Before you reject or accept, look down the road a little
. 20 bit. Let's assume that as a consequence of this debate this 21 afternoon we decide that no matter what we want to hear from
~
22 Dillman and Moriearty about their ideas, and at the end they 23 convince us.
24 Now what are we likely to do with that 25 information? Say, well, tear down the plant, your survey
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1 was not good, go on home, you've lost the case, that's it.
2 Or are we likely to say --
3 MS. TALBOT: Do it right.
4 JUDGE SMITH: Conform it with the guidance offered 5 by your people.
6 What are we likely to say? !
7 H3. TALBOT: I think the latter.
8 JUDGE SMITH: Well, I can tell you what we're -
9 likely to say. If it can be done, if we believe it could be 10 done, we are under mandate from the precedents of NRC law to 11 give them a shot at it.
12 So what is the most you could gain if you are r' 13 to -- what is the most that you could possibly gain?
14 The most that you can gain, in my view, is having 15 a survey conform to your witnesses' specifications. That's 16 the mos3 that you can gain.
17 MS. TALBOT: I guess I would just feel better in 18 the posture of having the Board do it the Board's way than 19 having me give away the store. We are not in a position to 20 say, okay, go to full power without the list, which we think 21 is so critical to anything prior to full power. .
22 JUDGE SMITH: They would commit assuming -- I 23 guess, if Dr. Dillman would be available -- they would 24 commit, as I understand it, moving on it right now and 25 having the so-called list before full power. But they are Heritage Reporting Corporation (202) 628-4888 i
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( ,_s (s,)\ 1 not going to commit keeping the record open for litigation 2 of the adequacy of that.
3 MS. TALBOT: I would think if they had Dr.
4 Dillman, there would probably be a very small chance that 5 there would even have to be furthIer litigation. But we 6 still can't dissuade that.
7 JUDGE FMITH: I would question that th6y are not 8 going to give you any chance. I would just really question 9 that.
10 MS. TALBOT: I feel in a difficult position, and 11 I'm not trying to stonewall, but I just cannot say, fine, 12 you know, don't have the list and plug the thing in.- There 13 is no way I can do that.
i
\~ 14 JUDGE SMITH: You would have the list as I 15 understand it. You would have the product of Dr. Dillman's 16 advice and efforts, if he's willing, before full power.
17 What you would not have would be the right to block full 18 power license by further litigation on it. That's what you
'9 would not have if I understand what the p'roposal is.
- 20 It would require on your part some trust, some l 21 trusting.
22 On the other hand, you had better weigh, or you i
23 should weigh what it is that is likely to happen if you 24 reject the offer. I don't know what's going to happen. We 25 have not yet ruled upon the admissibility of the testimony k
\s, Heritage Reporting Corporation (202) 628-4888 .
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[ 1 except we told you that it does not meet, in our view, the l
l 2 standards set by NRC regulations and precedence for the 3 receipt of a late filed issue. It only meets the standard 4 that arises to a significant le/e1 that the Board has taken 5 its own direct sui sponte interest in it.
6 HR. DIGNAN: Your Honor, in terms of considering 7 this, as long as we are in a negotiating session, the 8 Commonwealth continues to refer to the fact that there is no ,
9 list. There is a list at this time. It's the list that we 10 generated. Speaking to the record of this case at this i
11 time, I would point out to the Board our list generated a 12 -
list of names approximately equal to 1 percent of the
)
13 ,
population involved here.
14 If I recall correctly the testimony by Mr. Daines ,
l 15 last week, when he did a similar survey they only generated 16 a list that equaled, I think it was about three-tenths of 1 17 percent of the population.
18 H3. TALBOT: He admitted his survey was 19 inadequate.
20 MR. DIGNAN: Well, no, he didn't as a matter of -
21 fact.
22 MS. TALBOT: Yes, he did, Mr. Dignan.
~23 JUDGE SMITH: Well, Mr. Dignan --
24 MR. DIGNAN: You'd better reread the record 25 because he --
~
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( ,,) 1 MS. TALBOT: I already have this morning.
2 JUDGE SMITH: -- we are right now in a negotiating 3 session. .
4 MR. DIGNAN: No, no, I understand that. But my 5 point is simply this. The argument that there is no list 6 out there, the suggestion as the part of negotiation that 7 there is no list out there just isn't so. There is a list.
8 It is a list generated in a fashion that the Attorney 9 General doesn't l'ke and would like a better list generated.
10 But there is a list out there There would be a list out 11 there if nothing gets done and so forth. So I think that 12 has to be taken into consideration here.
,j - 13 Now what we are offering to do here is generate
-- 14 the new list their way. But Your Honor is quite correct 15 that I will not -- I have no authority and would not advise 16 my client to execute any agreement on this basis which could 17 result in blocking full power operation of the plant.
18 JUDGE SMITH: On the unilateral action of the 19 Attorney General.
. 20 MR. DIGNAN: Exactly, exactly. !
l 21 JUDGE SMITH: Well, I don't think they are arguing 22 that any more. That's already been rejected. l 23 MS. TALBOT: No. By the same token, we really 24 have no authority to waive the position of the Commonwealth 25 for the past whatever number of years it is. We would like
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20028 1 nothing better than for you to come up with an adequate 2 list, and we would like nothing better for that list to be l
3 approved by the Board prior to full powe_ licensing. And I 4 think that's the condition of the offer.
5 MR. FIERCE: I'm still looking for some --
6 JUDGE SMITH: I don't think we could be a party to 7 such a commitment, because I wouldn't envision it working 8 that way. The only thing we would approve would be the .
9 existence of an augmented list with Dr. Dillman's input. We 10 would not be in a position to approve the validity of that 11 list on any other basis, including criticisms you may have 12 of it.
13 We would be in a position to say, yes, it has been 14 done and know nothing more about it than it has been done 15 without evaluating whether it has been done correctly or 16 adequately or what, other than it has been done according to 17 the stipulation. That we could commit to, but we could not 18 commit to any evaluation of the adequacy of it, because, 19 number one, this is a stipulation.
I 20 I want to clarify what we are doing. We are not '
)
21 taking this up as a sui sponte issue, admitting it for l
22 litigation. What we are ruling here is legally you haven't l I
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23 made the case on getting this late filed testimony in here, l 24 But we don't want to drop it quite that easy. We want to 1
25 keep pressure on the Applicants because we can do it. We )
Heritage Reporting Corporation (202) 628-4888 l
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kss li have the power to do it. Whether we.have the legal l
2 authority to'do it or not, we have the power to do it. We 3 don't want the efforts to go wasted. We want to give you 4 want we can.
5 Now what you will be losing would be any right to 6- appeal the error of any decision we made by throwing this 7 testimony out.
1 8 MS. TALBOT: I lose the right to appeal by 9 entering into the stipulation.
10 JUDGE SMITH: I would say so, yes. I would say 11 so, 12 MS. TALBOT: Oh, absolutely.
y"' 13 JUDGE SMITH: I mean I can't decide what you can
\~~/ 11 4 appeal or not, but that would be my. view of that. I just 15 tried to have all of your cost and benefit on the table for 16 you.
17 MS. TALBOT: We realize that if we entered into 18 the stipulation we would withdraw the contentions so there 19 would be no grounds for appeal.
20 JUDGE SMITH: Right. Do you want to go consult or 21 something?
22 MS. TALBOT: We should really give the chief a 23 call.
24 JUDGE SMITH: I think so.
25 MR. FIERCE: We need to talk to Mr. Traficonte. I Heritage Reporting Corporation (202) 628-4888
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1 20030 j L 1 know that one of our concerns is we don't like to just turn 2 over our experts to the Applicants.
1 3 JUDGE SMITH: I understand that.
l 4 MR. FIERCE: There may be some middle ground. We i 5 would like to retain some expertise on the issue by 6 continuing to consult with our experts.
7 I also want to point out that it's not just Dr.
8 Dillman and Sharon Moriearty. .
9 H3. TALBOT: That's right.
10 MR. FIERCE: As well as substantive input that 11 would need to be applied.
12 JUDGE SMITH: I understand. It's the methodology -
13 approach, however, that we were focusing on.
14 MR. FIERCE: And I am wondering, first of all, 15 before we kind of draw the lines in the dirt whether there 16 isn't perhaps some room for some further discussion on 17 whether the two sides can get together, keeping their own 18 experts and looking first at a design, at a survey design, 19 and perhaps a questionnaire, and maybe if we could make that 20 the focus of any further disputes. We don't have to wait a 21 long time on this, Your Honor. This could be done fairly 22 quickly. Both sides retain their own experts. Then we see 23 what the Applicants come up with, with our suggestions, and 24 at the point where they say, this is what we're going to do, 25 you know, that be the subject of litigation, not something
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3 JUDGE SMITH: They have committed, they have 4 committed to do a survey based upon the present criticisms, 5 as I understand it, of your experts, and taking their advice 6 in the implementation of it.
7 MR. FIERCE: That's a starting point. But it 8 would be the end product that needs to be examined to see if 9 it meets, in fact, those standards.
10 JUDGE SMITH: Well, I don't know what you can do.
11 MS. TALBOT: Can we call our chief, Your Honor?
12 JUDGE SMITH: I would recommend to you that a
,-g
, 13 matter of this importance, if I were you I'would want the
-- 14 responsibility for rejecting it to be at a higher level.
15 MS. T.ALBOT: Oh, absolutely.
16 Or accepting it, Your Honor.
17 JUDGE SMITH: I beg your pardon?
18 MS. TALBOT: Or accepting it, too.
19 JUDGE SMITH: Yes.
. 20 MS. TALBOT: Just for the record, Your Honor, 21 could I just -- I never got to address the good cause, and I
~
22 know it's already been decided. But just for the record, I 23 want you to know that I honestly thought the issue was 24 there. I would have never drawn up the testimony, had the 25 experts draw up the testimony, and I couldn't specify the
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20032 1 particular problems with the survey until I got the 2 documents through discovery and then I had my expert review 3 them. .
4 JUDGE SMITH: And the documents, would you be very 5 specific about what documents and when you got them?
6 MS. TALBOT: I got about 11 inches cf documents 7 that pertained to the survey. I put them in a Federal 8 Express box. I sent them to sort of a person named Dr. l 9 Petterson, who we have retained. I sent them to him, and I 10 said, what do I do with these. Please sort --
11 JUDGE SMITH: And when was this?
12 MS. TALBOT: This was early February. What do I 13 do with these, and he's the one who went through them and 14 said, I think that you need an expert on survey method, and 15 then he referred me to Dr. Dillman, and that's when our 16 negotiations started.
17 I got this tremendous bundle of stuff from 18 Applicants and couldn't make head nor tail out of it through 19 no fault of Applicants. It was the nature of the documents, 20 and just sent them off. Maybe I read the contentions too -
21 broadly, but I thought it was there.
22 l
23 24 25 Heritage Reporting Corporation (202) 628-4888 l
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( ,/ 1 (The Board confers.)
2 JUDGE SMITH: Do you want to go talk to your 3 office?
4 MS. TALBOT: Sure. )
i S Thank you, Your Honor.
l 6 (Whereupon, a recess was taken.)
7 JUDGE SMITH: We thought you were making a report.
8 That's not the case?
9 MS. TALBOT: Excuse me, Yr.'r Honor.
10 JUDGE SMITH: We were conferring and I thought 11 you --
12 MS. TALBOT: Mr. Traficonte is coming down to gr g 13 clear up any questions. But I asked him, I said, you know,
's -] 14 . basically outlined the deal for him and my instincts were 15 correct that we can't enter into any sort of a deal that 16 would allow the plant to be licensed without our review and 17 judicial approval of a special needs survey. -
18 JUDGE SMITH: So he is coming here to say that?
19 MS. TALBOT: No. I think he is just coming here j
- 20 because he wants to come here.
21 (Laughter) 22 MS. TALBOT: I asked him to. !
23 JUDGE SMITH: But you are officially reporting 24 that you cannot accept any such --
25 MS. TALBOT: That's the official report.
I,FT
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1 1 Maybe if the Judge wants to impress upon him the 1 2 significance of it maybe he will have a different response.
3 JUDGE SMITH: Well, do you want us to do it again?
4 Review the stature of it?
5 MS. TALBOT: I think it might be helpful to just 6 put it to bed once and for all with Mr. Dignan and Mt.
7 Traficonte here to just say, here is the deal. It's in or 8 it's out and then just move on. ,
9 JUDGE McCOLLOM: When will he be here?
10 MS. TALBOT: He is on his way now.
11 JUDGE McCOLLOM: What does that mean?
12 MS. TALBOT: Oh, we're only up the hill, five r' 13 minutes. Ten minutes.
?
14 Your Honor, may I add at this point --
15 JUDGE SMITH: Just a second.
16 (Pause to peruse document.)
17 JUDGE SMITH: Go ahead. -
18 MS. TALBOT: I just wanted to point out that there 19 has been so much discourse on the methodology aspects of the 20 testimony and I know that Your Honor hasn't ruled yet on the -
21 five criteria which I probably inartfully discussed.
22 JUDGE SMITH: Oh, yes, we have. We have ruled.
23 MS. TALBOT: You have.
24 JUDGE SMITH: Yes.
25 MS. TALBOT: Okay.
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\._f 1 I just want to point out then that there is a lot 2 of the rest of the testimony in -- a lot of the language in 3 the testimony is independent of methodology related items 4 and I don't think it would fall under the same category.
5 JUDGE SMITH: This would be another instance -- if l i
6 that's the case -- another instance of the basic thrust of 7 the testimony is methodology, completeness, validity, 8 getting the proper information, and anything that isn't 9 covered by that we don't want to sit down and filter 10 through, sieve through your testimony and come up with the 11 parts that might have survived.
12 I mean, it's a survey methodology criticism.
13 MS. TALBOT: Most of Ms. Moriearty's testimony, k;r- g)
N' 14 Your Honor, goes towards'needs assessment which was 15 addressed clearly in the bases.
16 JUDGE SMITH: Most of her testimony is, we know 17 what the needs assessment should be and the survey doesn't 18 do it.
19 MS. TALBOT: I think I'm ahead of myself here
- 20 because you haven't even really discussed what you're going 21 to do with the testimony anyway. So I should just be quiet 22 and wait my turn.
23 JUDGE SMITH: Do you want to begin to argue what ,
24 you believe should survive of Ms. Moriearty's testimony?
25 MS. TALBOT: Has Your Honor already ruled that j i f( )) Heritage Reporting Corporation (202) 628-4888 ,
20036 1 despite the equitable considerations that --
i 2 JUDGE SMITH: Here is where we are. We said, you 3 didn't make it on the five factors for late filing. The 4 only one that you had going for you was the one that there 5 is no other means -- I mean, you will assist in the 6 developing of a record. And your point is correct. If you 7 don't do this the record will not be developed on it.
8 We also observed that you failed to show good .
9 cause for late filing. And when you fail to do that, that 10 your burden on the other counts increases commensurately.
11 All in all, if we were to apply the Commission's i
12 regulations and the adjudicative precedence we would not
~
13 accept this testimony into evidence. However, the Board on
(~
14 its own, in the' interest of having this aspect of the case 15 developed as well as it is possible to develop, readily 16 available information can make it develop, has taken a l l
17 special interest in it. So we are presiding over 18 negotiations from that perspective.
19 MS. TALBOT: If negotiations have fallen through, 20 then where are we?
21 JUDGE SMITH: Then we rule.
22 MS. TALBOT: Okay, i
23 JUDGE SMITH: And you're ready for our ruling? If 24 that's it, you can just tell Mr. Traficonte to stay home.
25 MS. TALBOT: I just don't know what we will do in (N.-
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( ,) 1 the meantime until he comes.
2 JUDGE SMITH: Continue your argument then.
3 MS. TALBOT: Okay.
4 JUDGE SMITH: No , that's all right, you don't have 5 to.
6 MR. TROUT: I also have another motion in limine 7 that has really only one issue and perhaps we could clean 8 that up while we're waiting. __
9 JUDGE SMITH: That's a good idea.
10 The sole testimony of Sharon Moriearty.
11 MS. TALBOT: This is on JI-497 12 -
MR. TROUT: Yes, Your Honor, g, ~ 13 (Pause to review document. )
\ -/ 14 JUDGE SMITH: So your argument is going to be that i
15 the issue survives under Contention 49?
16 MS. TALBOT: What issue, Your Honor?
l 17 JUDGE SMITH: The issue of notification of the .
18 special needs population.
19 MS. TALBOT: Actually, Your Honor, if I could just l
. 10 have one minute. I haven't looked at this before, I was too i 21 involved in the other motion in limine. I'm a fast reader. !
22 (Pause) 23 JUDGE SMITH: Well, let's not get off on that I
24 motion, Mr. Traficonte is here. l l
25 MS. TALBOT: 0.Nay.
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l 1 Your Honor, if I could ask Mr. Dignan just for the 2 record to restate the offer that's on the table that I have 3 sort of, you know, been indicating that we probably wouldn't 4 take, but just for the record reiterate it once and then we 5 will just make that final one way or the other.
6 JUDGE SMITH: Mr. Dignan?
7 MR. DIGNAN: The last offer?
8 JUDGE SMITH: Yes. .
9 MR. DIGNAN: The last offer that was put on the 10 table was the Applicants would commit to retain Dr. Dillman 11 to design any proper survey. Would execute the survey that
-12 he designs. And would utilize it when completed. That 13 offer is not made subject to any license condition that 14 would block full power operation either by way of completion 15 of the survey or by the adequacy thereof.
16 JUDGE SMITH: So when I characterize it as one 17 that would be completed before full power, that was not .
18 intended by you?
19 MR. DIGNAN: The completion of the survey -- I 20 just want to understand, I'm glad to complete the survey 21 before full power.
22 The problem with it is, I don't know how long it's 23 going to take Dr. Dillman to design, but let's assume he 24 designs. I'm advised the completion of the survey is no 25 problem. The problem is, I think most people are thinking Heritage Reporting Corporation (202) 628-4888
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1 ~ survey in this room as being the list. . That's:what my 2 sister keeps referring to. "he list doesn't come out of the 1
3 completion of the survey, but rather comes out, as I 4 understand it, of the verification, _the process that takes 5 place thereafter.
-6 Do you see what I mean? If there is a hangup in 7 there I don't want that to block full power operation.
8 But we are prepared to execute the survey and I
9 verification process that Dr. Dillman designs.
10 JUDGE SMITH: Well, without regard to any time 11 limit?
12 MR. DIGNAN: That's a fair question.
i I
13 There ought to be some time limit on it.
t 14 May I have a moment with my people?
~
15 (Counsel confers.)-
16 MR. DIGNAN: Yes.
17 I'm going to be unable to give it time and let me 18 explain why and maybe possibly Your Honor can further things 19 by getting an answer.
l
. 20 We don't know how long Dr. Dillman thinks it will 21 take him to design the survey. Nor are we totally clear at 22 this juncture as to what verification process Dr. Dillman 23 would think was necessary. And this is my hesitancy.
24
- I am prepared to state that if Dr. Dillman designs 25 the survey with milestones in it, we would be prepared to
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1 meet the milestones he says.
2 My problem is, I just simply don't have the 3 information eithout talking to hin as to what the realistic 4 time limitation is.
5 JUDGE SMITH: Mr. Trat'iconte, to bring you up to 6 speed.
7 We have determined that the Dillman-Moriearty 8 testimony had to be viewed as a late-filed issue. And going .
9 over the regulatory factors that have to be considered in 10 viewing a latc-filed issue we found that good cause had not 11 been established for the late filings. Specifically that 12 learning from an expert after the close of discovery is not (1 13 in itself a suitable time period for good cause for late-14 filed testimony.
15 Now I'm only listing the reasons; I'm not trying 16 to restate them. I doubt if I could restate it in the time 17 available.
- 18 We did acknowledge that the Commonwealth and only 19 the Commonwealth can contribute to a complete record on this 20 particular issue. And that the issue would have fallen 21 within a broader rubric of the contention and one of the 22 bases for it. But there was insufficient notification.
23 So the Board ruled that it doesn't make it --
- 24 there was insufficient notice to the Applicants for the 25 testimony to be accepted as it is and you didn't make it as Heritage Reporting Corporation (202) 628-4888
} .-
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\, 1 a late-filed issue.
2 But because of the fact that if the Commonwealth L 3 doesn't make the point it will never be made. And we L 4 believe it is a matter of unusual sensitivity. And we 5 believe there is readily available expert help on the survey 6 that we did not want to see that expert help wasted or just 7 not utilized.
8 Therefore.as a matter of the Board's own.
9 discretion we have tried to prod the parties into some 10 settlement which could take advantage of Dr. Dillman's 11 expertise. And so far you have heard the problem stated by 12 Mr. Dignan. And there is just one slight aspect of the mix 13 that has not been put to you and that is, in my view this tg,-~g)
\s 14 issue should not be viewed in the light of whether the 15 Attorney General engages in planning or doesn't engage in 16 planning. That has been taken out of the Attorney General's 17 hands. .
18 The only thing left to the Attorney General as far 4 19 as I can see is to take or leave what is likely -- what
. 20 likely would be a Board condition. If you had prevailed on 21 getting the testimony offered and the Board had accepted 22 your expert's criticisms, it is very unlikely under 23 Commission precedence that we would say, tear down the 24 plant.
25 Under Commission precedence we would condition
( Heritage Reporting Corporation (202) 628-4888
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1 operation based upon conforming to the criticisms, if they 2 survived. The advantage that I would see to the Attorney i
i 3 General is, without putting your testimony to risk on cross-4 examination, without putting your testimony to risk of being <
5 disregarded in its entirety, you have an opportunity, not of 6 your own making, but to assure that at least the Attorney 7 General get out of this issue is that it will have an 8 opportunity to have the inadequacies addressed accordfng to ,
9 your own expert's standards.
10 I recognize the problem that you face as a 11 litigator, as Ms. Greer made clear last week with respect to 12 Dr. Leaning's testimony, that you simply are not in the 13 business of improving their plan.
14 But in this instance I think that, in my view, 15 it's somewhat different because this is not something --
16 this is something that has been placed in your lap by the 17 Board and not a matter of litigation strategy on your part.
18 Here is your chance to at least come away from this issue 19 with this; otherwise compared really, as far as I can see, 20 the most you can ever gain on it is a condition.
- 21 On the other hand, as you probably are very well 22 aware, if you just allow the Board to strike the testimony 23 or reject the testimony, then you have preserved your 24 appellate rignts on that issue.
25 I don't want to be advising you on that. And I f'
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- 1-
\_,/ 1 don't want to start telling you these things without giving
! 2 you a full picture.
3 MR. TRAFICONTE: I was just about to ask you a 4- question, if I might.
5 JUDGE SMITH: Because the contention would be 6 withdrawn.
7 MR. TRAFICONTE: Would be withdrawn. Okay. Just 8 to make that clear.
9 Could I just make an inquiry. Assuming that the 10 testimony were admitted and we carried the day, I understand 11 the Board could and perhaps would make it a license 12 condition that an adequate survey in fact be done,
,f 13 JUDGE SMITH: Right. Subject to the NRC Staff's s_/ 14 approval. And we're sweetening it up by keeping 15 jurisdiction.
16 MR. TRAFICONTE: And you would keep jurisdiction.
17 JUDGE SMITH: Yes.
18 MR. TRAFICONTE: Just as a technical matter how 19 would that work? Would the Applicants subject to a licensed
. 20 condition as they are engaged in meeting that condition be 21 free to go to full power.
22 JUDGE SMITH: Yes.
23 MR. TRAFICONTE: I'm sorry?
24 JUDGE SMITH: That's possible. Yes.
25 I don't know. We might say, bearing in mind that Heritage Reporting Corporation (202) 628-4888 .
4
1 you already have a list that you can go to full power 2 providing that within six months you improve the quality of 3 your survey. I don't know, it would be a matter of 4 judgment.
5 MR. TRAFICONTE: But the Board is of the view that 6 that issue as to the timing of these events is left to the 7 discretion of the Board to fashion a remedy any way it wants 8 to. -
9 JUDGE SMITH: We have to look'at the whole record.
10 HR. TRAFICONTE: Yes.
11 JUDGE SMITH: Yes.
12 I think that our remedy also is subject to appeal.
- p. 13 You know, the whole thing. But I think that that is one of 14 the things we could do.
15 We could, of course, always find that the 16 testimony is so convincing that the list that already exists 17 has to be done before full power. That's a possibility.
18 But the thing that is not going to happen in all 19 likelihood is that we will find the SPMC favorably and 20 irreversibly flawed based upon the survey technique, if we 21 believe, as this very testimony suggests, that there are .
22 flaws in it that the experts say could have been remedied by 23 proper technique.
24 MR. TRAFICONTE: I understand that.
l 25 JUDGE SMITH: We are very sympathetic to your Heritage Reporting Corporation (202) 628-4888 1
20045
. .fi-1 litigative problem, because every time you come in with a 2 criticism you say, how can it be improved; you're stuck with 3 it.
4 l
5-6 7
8 9
10 11' l 12 9 . 13.
14 9
15
'16 17.
. 18 ,
19
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20046 1 JUDGE SMITH: But in this instance you've got a 2 little bit different matter.
3 MR. TRAFICONTE: Well, let me just be candid about 4 our view on this contention or at least our view on what we 5 thought the contention encompassed and this particular piece 6 of testimony.
7 We're of the view that their plan has a deficiency 8 under the regulations with regard to the identification of .
9 the handicapped population. And we think that there are 10 pieces to that or there are parts to that. But one of the 11 major parts is the identification of the handicapped in the 12 first instance.
( 13 There are few pieces of this case where we think 14 we have got a strong a e.ase on the deficiency as on this 15 aspect of it because in many ways there may have been 16 perhaps inherent difficulties that they had in gathering the
. 17 information. For whatever reason, we think it's, on its 18 face, inadequate because they don't have enough and they 19 don't have the right kind of individuals. So they don't 20 have enough of the right kind of individuals.
21 For that reason, as I now understand it, the 22 contention has been read or interpreted in such a fashion 23 that the particular critique of the survey vehicle seemed to l
24 be outside of the contention and so it's being treated as 25 late-filed.
(
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. Q(%,,) 1 JUDGE SMITH: No, it is not outside of the 2 contention.- There was no basia.or specificity sufficient to 3 have that included. And interrogatory responses'did net 4 produce the sufficient. specificity either.
5 MR. TRAFICONTE: Right.
6 JUDGE SMITH: So therefore, if it is going.to come i
~
7 in at all it would have to be as a late-filed subissue, j 8 NR. TRAFICONTE: And that has been argued and we.
9 don't prevail on or at least it's in question whether we 10 would prevail on it as a late-filed.
11 JUDGE SMITH: You didn't prevail, but it wasn't 5 12 to 0.
/- 13 MR. TRAFICONTE: Right. Was it 3 to 27
\ 14 JUDGE SMITH: No. It was 4 to 1. And that,is, 15 the third one was,'there will be no record made on your l'6 criticism at all unless you come in and offer this 17 - festimony. And the Board looking at that, realizing that if 18 ycu don't make the good cause for late filing, you have a 19 very large burden on the others. And you probably applying
. 20 Commission regulations and precedence would not be able to 21 get this testimony in as late-filed.
~
22 But we were convinced by the persuasive and well 23- delivered arguments of your co-counsel there that if the 24 Commonwealth doesn't come in with this, it just is not going
~
25 to be heard. So she has persuaded us to step in, using our
' ff Heritage Reporting Corporation (202) 628-4888 4
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(. i 1 discretion, to see if we could not provide some way without i I'
2 detriment to your position to salvage the readily available 3 advice of Dr. Dillman.
4 MR. TRAFICONTE: If I understand, and I think I )
5 do, if I understand the posture now, I don't understand why 6 the Board can't -- why the Applicants, for example, could 7 not stipulate that the contention has merit; thereby 8 removing the onus on us to withdraw it. Jtipulate that the ,
i 9 contention has merit. The Board could then as a license 4 10 condition, in whatever way the Board in its wisdom chooses 11 to actualize that condition, require of the Applicants to 12 engage in a survey as described with whatever timing g 13 requirements the Board wants to impose relative to full 14 power operation. Leaving us with, if you will, the same 15 appellate posture that we would have had we gone through, 16 had the testimony in, had the Board find our way or not find
- 17 our way. -
18 My point is, the posture of the situation is that 19 we are being asked to withdraw the contention; and thereby 20 that has an appellate consequence. -
21 I'm saying if the Applicants are prepared to 22 stipulate that the contention has merit or some other formal 23 equivalent; thereby we win, if you will. The Board then 24 issues an order, as to this point at least, in some fashion 25 up to the Board making a condition of full power license,
(
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f/ T 1 the adequacy of the survey and that we would abide by.
\ ,/
2 JUDGE SMITH: That was being offered to you.
3 without delay right now.
4 MR. TRAFICONTE: Yes. Except it's being offered 5 in the form of our taking the action to withdraw. And I'm 6 just going back to Mr. Dignan and saying, since that has an appellate consequence to us and since the Board has just
^
7 8 disclosed the fact that it's free to permit full power 9 operation with this survey coming in on line after that 10 operation.
11 JUDGE SMITH: Put that aside for the moment.
12 MR. TRAFICONTE: I can't do that because it would gps 13 be our view that -- our own view at least -- that there
\-% 14 should be -- this is an important component part of the 15 emergancy plan and if there is a deficiency in it the 16 deficiency should be essentially met.
17 JUDGE SMITH: We haven't found a deficiency.
18 MR. TRAFICONTE: Nor will you -- and you may not 19 if we don't take the deal that's offered.
. 20 JUDGE SMITH: We're not even deciding if there is 21 a deficiency. We're saying, we're not looking at the record 22 that has already been produced and finding that it's I
23 inadequate and it needs Dr. Dillman.
24 We're saying that Dr. Dillman comes in here with j l
25 credentials --
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1 MR. TRAFICONTE: Yes. ,
2 JUDGE SMITH: -- that show that he knows something 3 about a survey. And that we don't want it to go to naught.
4 MR. TRAFICONTE: In my scenario it would not.
5 JUDGE SMITH: But look down the line.
6 Remember this chain. Let's say that we decided, 7 just as a matter of discretion, we can get reversed on it 8 and maybe we will and we will violate the rules, but we're ,
9 going to let this testimony in. And the Applicant can 10 cross-examine or not cross-examine.
11 Let's say that they choose to not cross-examine I
12 and we read it and say, okay, that's what they think, these
(~ 13 are problems that they have here, we're doing to condition 14 the license. You have prevailed on that contention.
15 MR. TRAFICONTE: Yes.
16 JUDGE SMITH: We're going to condition the 17 license. We are not going to say, no ticket. We were going 18 to say, the license must be conditioned.
19 Now what are your choices?
20 You can say, the condition is not adequato and -
21 appeal it. Or you can say, we've prevailed we're not going 22 to appeal.
23 MR. TRAFICONTE: Right.
24 JUDGE SMITH: And I'm just telling you right now 25 that if we condition the license based upon the advice of
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(/ h
( ,) 1 the testimony --'if it's received in evidence -- that it is 2 very unlikely that the Appeal Board is going to -- what is 3 it that an appellate body is going to do to us? They're 4 going to say, hey, you shouldn't have conditioned the 5 license, you should have denied it. What is it?
6 The only thing that you would have is that the 7 conditions we put on do not satisfy your contention. Well, 8 that's where you enter it right now. You can make sure that 9 the conditions satisfy your contention now.
10 MR. TRAFICONTE: But not prior to full power 11 operation, as I understand it.
12 JUDGE SMITH: Right.
-' 13 No, no, you can make sure. Here i s what you can
\~- 14 be assured of. ,
15 MR. TRAFICONTE: No. Mr. Dignan is not prepared 16 to do that.
17 JUDGE SMITH: Well, let's .ust j wait; we're not 18 done with that.
t 19 You can be assured that the condition -- you can
. 20 be involved in the pre-fashioning of what would be the type 21 of condition that you might expect at the end of this 22 litigation, if you could get it somehow to reverse our 23 ruling. And that is, that there be a survey of the type 24 fashioned by Dr. Dillman and that it be implemented and it 25 be done within a certain time.
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,a 1 But what you would gain is that the Board would 2 retain jurisdiction overseeing that it is done. Ani. perhaps 3 even seeing that it's done well. But not with regard to the 4 issuing of a full power license. Some other time -- some 5 other time factor.
6 The Applicants will not yield to the Attorney
. 1 7 General any unilateral hold over the issuance of a full 8 power ticket. They will not do that. ,
9 MR. TRAFICONTE: My proposal did not antail that 10 they do. My proposal was simply the procedural inverse of 11 what is being presented to me, which is just as much in 12 their -- they hold the key to this one as much as we hold -
4 13 the key to the other proposal.
( , i 14 If they agree in some procedural fashion or 15 stipulate to the merits of the contention, at least as to 16 the inadequacy of the survey and the identification of the 17 handicapped, they stipulate.to that, the Board therefore 18 conditions as a or fashions a remedy for that to be exactly 19 what we are now discussing, a survey to be engaged in at 1
20 some point after today. It is to have these pr.i :, et -
l 21 cetera, et cetera.
22 And the Board in its vi om links that survey in 23 any way that the Board chooses to the issuance of the full 24 power license; then the onus is off of us to withdraw. In 25 fact it's identical. The outcome could very well be
('
Heritage Reporting Corporation (202) 628-4888
20053 7.s 4
3(
s_ ,/ 1 identical to the present posture with the only difference 2 being that 1.s had. stipulated that in' fact there is merit to 3 the contention.
4 The Board has thereby fashioned a remedy for it.
5 It's the same remedy that we are now discussing and we don't 6 have to withdraw --
7 JUDGE SMITH: Here is what you already have. You 8 have Mr. Trout saying, had this contention been -- had this 9 testimony been offered as a basis at the time of the 10 original filing of the contentions you would have no 11 problem. They could not object to it. So you may have 12 something to go there.
.j 13 The Applicants could say, except for the lateness I
\- 14 of the filing this testimony relates to an issue properly 15 within the ambit of the contention and properly within the 16 ambit of the proceeding as a whole.
17 They do not waive their arguments that there was 18 late filing and should not be heard on that account. And 19 then you go on from that point.
. 20 Does that satisfy you?
21 They have already made that. They already made
~
22 that argument and concession that the only infirmity of this 23 testimony is that there was, on one hand, not sufficient 24 notice of the specifics; and on the other hand, there was no 25 justification for late filing.
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1 They have agreep already that the contention would 2 otherwise have raised issues properly within the purview of 3 the Board and the proceeding.
4 MR. TRAFICONTE: Your Honor, let me try to be 5 completely candid.
6 There are two levels here. One is the substantive 7 level which is a concern that we have about the plan having 8 an inadequate part in it. That's to say, we don't think ,
9 there is sufficient identification of the handicapped.
10 We are trying to see our way clear to protect that 11 interest, if you will. The substantive concern that the 12 contention, as we understood it, expressed.
c.: 13 There's another procedural interest we have, which 14 is quite obvious and that is, that we are loath to withdraw 15 something and thereby give up our appellate right.
16 Now, please appreciate that I understand --
17 JUDGE SMITH: That's right.
18 MR. TRAFICONTE: -- understand that our view is 1
19 that if you're going to read the contention with the bases 20 to keep this testimony out, and if you are then going to -
21 apply the late-filed contention criteria and again rule that 22 when you weigh the five factors it still stays out -- and
)
23 please don't misunderstand this or take this the wrong way
)
24 --
but we would obviously view that as an appellate 25 opportunity, if you will.
t L
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k ,) 1 JUDGE SMITH: So why in the world would Applicants 2 agree to anything to you if you want to keep your appellate 3 rights? What is their incentive to nego.tiate?
4 The only incentive they have to negotiate is the 5 Board's own judgment that, hey, we don't want to walk away 6 from this one quite as readily as the law and precedence
~
7 would have us do. That's the only thing you've got going.
8 MR. TRAFICONTE: Would permit you to do.
9 That's why my proposal is really right back at the 10 Board's interest in the contention. In other words, you're 11 looking at us and saying, if you'll withdraw it we'll 12 fashion something -- -
77 s 13 JUDGE SMITH: I'm not saying that. I'm just
\m- 14 speculating. I'm not going to answer for Mr. Dignan 15 anymore, he can answer quite well. .
16 I just don't see why he would agree to that.
17 - MR. TRAFICONTE: Because he'll get exactly the 18 same result, .quite frankly.
19 JUDGE SMITH: Let's see what he says.
. 20 MR. TRAFICONTE: I think he will get exactly the 21 same result. He will get a new survey or we will all get a 22 new survey. The handicapped population will be identified ,
\
23 to the extent it's possible." He will get the issuance of a 24 license. The survey results and the survey as an act or as 25 some yet not committed procedure will be linked to the k
\, Heritage Reporting Corporation (202) 628-4888 .
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1 20056 r~
1 license in whatever way the Board's discretion wants to link i l
2 it and that will be the end of the matter.
3 But we will be -- I mean, from our perspective we 1
4 will not have to withdraw the contention, which we are very l 5 loath to do.
6 JUDGE SMITH: What is it that you would appeal 7 then?
8 MR. TRAFICONTE: We would be limited -- since we .
9 would have won the issue, essentially, by stipulation, the 10 only thing we would be able to appeal is the relationship in 11 your remedy between the survey and full power operation.
12 That's to say, if you permit full power operation and the
, 13 survey comes in later we could seek an appeal on that.
14 MR. DIGNAN: Would you be able to argue that the 15 full power operation should be stayed in --
16 MR. TRAFICONTE: You know the law as well -- look,
. 17 I mean --
18 MR. DIGNAN: Excuse me.
19 Would you not, if I made the admission you want of
~
20 substance, go to both the Appeal Board -- three places: the I
21 Commission and the Court of Appeals -- and argue that my 22 admission that the contention had substantive merit is t
23 grounds to stay operation? Are you going to waive that 24 right or aren't you?
l 25 MR. TRAFICONTE: Could I have a minute on that.
(' Heritage Reporting Corporation (202) 628-4888
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//
1 MR. TRAFICONTE: That may be the heart of the
-2 matter, in fact.
3 M1. DIGNAN: Well, I'm sure you're not.
4 (Counsel confer.)
5 MR. TRAFICONTE: If I could ask Mr. Dignan for a 6 clarification.
7 I heard you say that you would want a waiver from 8 us of using your admission as --
9 MR. DIGNAN: No, I didn't say what I wanted. I 10 said do you understand that if I go along with your 11 suggestion, that you would not be able to argue for a stay 12 on the basis that I'sve made a substantive admission of p] 13 deficiency.
14 MR. TRAFICONTE: Right.
15 MR. DIGNAN: Because thats w' hat I understand you 16 to be asking for. You're not asking me for what Mr. Trout 17 has happily conceded. That is to say, your testimony --
18 MR. TRAFICONTE: No, no.
19 MR. DIGNAN: You want me to admit that our survey 20 is no good.
21 MR. TRAFICONTE: Right.
~
22 MR. DIGNAN: And then I asked you, assuming I 23
- could be talked into that admission, and you keep an 24 appellate right.
I 25 Now you said you want to keep an appellate right, e
Heritage Reporting Corporation (202) 628-4838 1
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20058 1 So I think what you want to do with that, frankly, is, (a) 2 you want to appeal on the grounds that I made that admission
,3 and therefore by law my license should have been denied; (b) 4 you want to take it to whatever court you can and say they 5 admit their survey is no good, and therefore there is good 6 grounds under the appeal in the stay motion. I want a stay
\ -
7 for full power operation. That's my guess as to what you l
f 8 want to do with it. '
1 I
9 And so I'm asking the question as to whether the 10 Commonwealth, if I make this admission, is prepared to waive 11 any right to use this in the stay. And I'll tell you my l
l 12 next question.
1 '
l - 13 If you say, yes, then my question to you is going 14 to be, then why aren't you willing to just give up the 15 contention, because you haven't got any appellate right left 16 at that point that's worth anything to you.
17 And I guess you're going to tell me, I still don't 18 want to. And then I just get scared.
19 MR. TRAFICONTE: Well, you say we would have no 20 appellate right worth anything. We would have the appeal on -
21 the merits.
22 MR. DIGNAN: No, you don't. The appetl on the 23 merits is gone.
24 MR. TRRFICONTE: You said the stay. You are using 25 it only at the point I'm seeking a stay.
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_s 1 MR. DIGNAN: _Yes, but the only appeal you've got 2 on the merits is the one that Judge Smith outlined to you.
3 That is to say, that his condition is not satisfactory, and 4 I rate that as zero. I mean, you can rate it as many as you 5 want, but I rate it as zero. And so I might be willing to 6 make this extraordinary concession.
~
7 MR. TRAFICONTE: Right. .
8 MR. DIGNAN: But I have a feeling you want it for 9 more than that. And so my first question to you is, are you 10 prepared to waive any right to use that admission on a stay 11 motion.
. 12 MR. TRAFICONTE: On a stay --
g 13 JUDGE SMITH: Mr. Traficonte, I also get the l
14 impression that there is something unspoken in your 15 reservation.
16 MR. DIGNAN: Yes.
17 JUDGE SMITH: And I'm trying to -- -
18 MR. TRAFICONTE: Yes. Well, I haven't reserved 19 anything.
20 JUDGE SMITH: Well, in your unwillingness to give 21 up your appellate rights on the rejection of the testimony 22 in favor of the remedy. And if I knew what it was, I would 23 try to fashion *something that might relax you on'it, but you 24 are not really coming out with it. And Mr. Dignan, I think, 25 is -- his antenna is quivering, and ours is too, because I i
I I
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1 just don't understand what it is, particularly bearing in 2 mind that we have put you now in a posture where I don't see 3 where practically speaking you have any choice, you know. ;
t 4 MR. TRAFICONTE: Well. /
5 JUDGE SMITH: And I'm saying that for your 6 benefit.
7 (Laughter.)
8 MR. TRAFICONTE: You always say that for my -
9 benefit.
10 JUDGE SMITH: I mean, I don't really see what your 11 choice is when we are saying to you that we are extending a 12 protective arm around this testimony for the time being --
g- 13 MR. TRAFICONTE: Yes.
14 JUDGE SMITH: -- to see if it cannot be salvaged
~
15 in some way and' speculating on what con'ditions we might 16 impose, if we took Dillman and Moriearty without even cross-17 examination, just took it as stipulated testimony and what 18 conditions we might impose, and then we're giving you an 19 opportunity to negotiate what 100 percent success on this I
20 testimony might bring you. And I am predicting that the l
21 only success it would bring you is a license condition. And 22 the license condition is not likely to be a pre-operational 23 one given the state of the record.
24 Now that is right there, that is the nub right 25 there. ,
1 f
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\ ,)3 1 MR. TRAFICONTE: That is the heart of it.
2 JUDGE SMITH: That is the little area of --
3 MR. TRAFICONTE: That is the heart of it.
4 JUDGE SMITH: Yes, that's the heart.
5 MR. TRAFICONTE: Right. Because without going, 6 and I profess that I have not recently looked at the law, 7 the NRC law on this very point. But without looking, we 8 would take the view that in fact, and obviously this is 9 matter of judgment, but depending on what it is, what kind 10 of condition or what the condition, license conditions runs 11 to, there are certainly license conditions that have to be 12 met prior to full power operation.
?- 13 JUDGE SMITH: The way I would fashion it is that k- 14 assuming that Dr. Dillman is available and would be 15 cooperative, wh'ich'is another prob 1'm.
e 16 MR. TRAFICONTE: Yes.
17 JUDGE SMITH: But that there would have to be --
18 we could even have milestones. A contract would have to be 19 entered into by X date. The initial identification
. 20 completed by X date. Verification and validation by yet 21 another date.
22 MR. TRAFICONTE,: Would the milestones be in any 23 way linked to full power operation?
24 JUDGE SMITH: We would not put in Dr. Dillman's 25 hands, or your hands, or anybody's hands the unilateral
.n\
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20062 1 power to block full power operation. That would remain in 2 the Board's hands. But it is possible that some milestones 3 like the contract and the additiona) identification without 4 validation would be pre-operational.
5 MR. TRAFICONTE: We would be prepared to withdraw 6 the contention to the extent that we could agree that 7 sufficient portions of the results of the survey are 8 obtained pre-operational. -
9 JUDGE SMITH: Yes, but --
10 MR. TRAFICONTE: That's the nub of our --
11 JUDGE SMITH: -
you would be willing to accept 12 this. And that would be not that you had retained the power 13 to approve whether those results were in fact obta'ined, you 14 would have to sacrifice that trust to the Board.
15 The only thing that we would'be prepared to do 16 pre-operational was say the contract was entered into, the 17 identification list has been prepared, without going into 18 the merits of it, pre-operational.
19 MR. TRAFICONTE: Yes.
20 JUDGE SMITH: Because that would, in turn, give 21 you the unilateral power to block it.
22 It's not that we would never entertain a 23 contention that the list is faulty, but it would not be a l 24 condition of operation. And we say that based upon -- we've 25 already heard some evidence that there is a list, and we Heritage Reporting Corporation (202) 628-4888 i i
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- 2. MR4 TRAFICONTE: Yes,'there is a list.
3 JUDGE SMITH: So'we are not concerned about a 4 short period of operation based upon the-state of affairs 5 now.
6 Our interest right now is are things as good as 7 they can be, not are they adequate.
8 MR. TRAFICONTE: Right. ..
9 JUDGE SMITH: Are.they as good as they can be.
10 I'm not saying'that we have found them adequate.
11 I'm just saying that's part of the mix. Our intercession 12 right now is based upon are things as good as they can be
, 13 with readily available'information already generated, 14 already agreed to, is it as good as it can be. And this is 15 the only area that we've entered in'to w'here we believe is 16 worth our intercession.
17 MR. TRAFICONTE: :Let me put it another way, and .
18 I'm going back to the substantive concern that we have.
19 I think that, to the extent that the remedy is
. 20 fashioned to include milestones be met, and the one that 21 pops in my mind is that the identification process be
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22 complete. If that milestone -- if part of the condition, if 23 you will, or the stipulation, however you want it fashioned, 24 if that milestone were met prior to full power operation, I' 25 think we could live with that result.
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'l j 1 JUDGE SMITH: If you bear in mind that -- '
2 MR. TRAFICONTE: But that is not what, of course, 3 Mr. Dignan has indicated. ,
l 4 JUDGE SMITH: I know, he hasn't said that.
5 MR. DIGNAN: And I can't. I 6 JUDGE SMITH: You can't do that.
7 MR. DIGNAN: My people tell me this. Now, you 8 know, maybe Dr. Dillman alone in a room could. convince me .
9 I'm wrong. My people tell me this. That doing the survey 10 is not all that long. I've heard numbers from six weeks to 11 two months to do the survey. What takes the time is what
-12 takes place after that, which is the verification.
13 JUDGE SMITH: No, verification. No, I am 14 specifically excluding until post-operation -- it's not a 15 pre-operational milestone for this reason. And that is, 16 verification is most likely to reduce the list.
17 MR. DIGNAN: Correct. .
18 JUDGE SMITH: Rather than augment it.
19 MR. DIGNAN: Correct. There is no question about
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20 that, Your Honor.
21 JUDGE SMITH: See, so --
22 MR. DIGNAN: And that's the point. The point I'm 23 getting into is it would be one thing if the settlement was 24 we withdraw the contention and you agree to finish the 25 survey, and that's the way I was putting it and somebody
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- 1. just said, look, they'aren't talking the survey; they're {
1 2 talking the list. l 3 ,
But my understanding,is the raw survey, which
- 4. produces the first list, if you will, can be done in six 5 weeks to two months, in our judgment. I don't know if Dr.
6' Dillman would be willing to state, because that's the-other 7 problem I have, I don' t know what Dr. Dillman's view of that 8 is or how long it will take him to do the designing. I mean 9 that's another temporal problem I have. j
.10 JUDGE SMITH' Would there be any value of us 11- adjourning early -- I think we have discussed it enoughL--
12 and talking privately among the people as what can be done y 13 on it?
\ 14 MR. TRAFICONTE: There might be 'if Mr. Dignan --
15 if there is the possibility of movement'in this regard.
16 That's to say, if portions -- if you could agree that 17 portions would have to be complete before you operate, if 18 that's the bottom line that you can't go over.
19 MR. DIGNAN: No, no. I've got to hear from Dr.
, 20 Dillman as to what can be done when, because I have my own 21 views of when I will need it done by. . That's point one.
22 Point two is, so we don't kid anybody, what is 23 going to be coming from the other side is a withdrawal of 24 the contention. You are going to kill your appellate rights 25 in this matter, as far as I'm concerned, dead -- D-E-A-D, 9
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2 So the Board understands where I'm coming from, we j i
3 have treated this in,this negotiation session, as we should, I
4 the theory being that Dr. Dillman has something to l
5 contribute, that Dr. Dillman -- we went all the way, as you 6 said, we might not cross-examine it. You know, this is the 7 most you could win.
8 If it goes in, we'll cross-examine, and we may .
1 9 have some people to say some other things about what he's 10 done. I am not prepared to concede that Dr. Dillman is l l
11 right here.
12 JUDGE SMITH: I understand that.
,- 13 MR. DIGNAN: I am prepared to concede, which Mr.
14 Trout has, that the testimony would have made it otherwise.
And I am perfec'tly prepared to admit on the record, as I 15 16 have before and as we have in other contexts, we're very 17 aware of the fact that any time you are using surveys other 18 qualified people can do it a different way. But in line 19 with the discussion we had of the law some days ago on this 20 matter, you see I don't think they are merely showing there 21 would be another way to do the survey will carry the day for l l
22 them.
23 JUDGE SMITH: Well, I understand that.
24 MR. DIGNAN: And that's my point.*
25 JUDGE SMITH: Would this pre-operational condition Heritage Reporting Corporation (202) 628-4888
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2 That there be a contract tendered and accepted by g l 3 Dr. Dillman, the terms of which provided for the completion .
4 of a. survey, not with verification or validation, but with 5- . the initial completeness of the list pre-operational, just 6 the terms of it. The contractor provide for good faith l 7 efforts on both parts to meet that deadline.
,. 8 MR. TRAFICONTE: So the only thing that would be 9 pre-operational will be the tendering of the contract that j 10 itself would have those terms?
11 JUDGE SMITH: Right. But not the verification.
12 Verification, as we pointed out, is likely to reduce the p 13 list. I don't regard verification as a safety matter. It's tt .
a resource matter, and that extends indirectly to safety.
14 And the verification takes longer, but 'the contract would
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15 16 call for the completion of the initial survey and list pre-17 operational with a date certaio, 18 MR. DIGNAN: Your Honor.
19 JUDGE SMITH: July 1st or something like that.
. 20 MR. DIGNAN: In order to focus this, unless the 21 Board is reluctant to do it or the doctor is, what I need to 22 know right now before I -- and I imagine Mr. Traficonte 23 does, too -- is how long does Dr. Dillman think, starting 24 with today as day zero, if you will, it will take him to 25 design the survey; and does he concur from that day forward
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20068 1 when it can be completed by.
2 I mean we've all been sitting here trading on Dr.
3 Dillman. For all I know Dr. Dillman won't work for my 4 people anyway. Or if he does, my understanding of these 5 times are at great variance with his. So before I can do 6 anything on the way of a milestone, I have to know what does 7 Dr. Dillman believe is possible.
8 _. JUDGE SMITH: Well, that's why I suggest we -
9 adjourn early tonight and you talk about it.
10 HR. DIGNAN: Yes.
11 MR. TRAFICONTE: That may be advisable.
12 Let me just make sure I understand what's on the a 13 table. I know that the contention and the testimony that we 14 had prepared was the testimony that ran to the survey of Dr.
15 Dillman, and Sharon Moriearty's testimony, which was not a 16 critique of the survey vehicle. I am coming into this a 17 little bit late. .
18 Are both of these pieces of testimony linked here?
19 JUDGE SMITH: Well, we have spoken both ways on 20 that. But on reflection, Ms. Moriearty's testimony talks 21 about what would in effect be the validation of the methods 22 used by Dr. Dillman and not survey methodology itself. And 23 they were in remarkable agreement along certain lines there.
24 Having read the testimony, I don't know how Hb.
25 Moriearty's contribution would add to the product that we're Heritage Reporting Corporation (202) 628-4888
,s 20069 1- seeking right now.
2 MR. TRAFICONTE: All right.
3 JUDGE SMITH: I don't know how. You would have to 4 work that in. ]
1 5 MR. TRAFICONTE: Could I just confer for about 30 ]
J i
6 seconds on that to make sure?
'7 JUDGE SMITH: Yes.
8 (Counsel confer.)
9 MS. TALBOT: Your Honor, JI-49 is not on the table
'10 now, correct?
11 JUDGE SMITH: The what?
12 MS. TALBOT: JI-49 is not on the table.
13 JUDGE SMITH: No, no.
14 MS. TALBOT: Good.
15 JUDGE SMITH: No , that's separate.
16 MS. TALBOT: Okay, good.
17 (Counsel confer.)
18 MR. TRAFICONTE: If I can just add a comment on 19 that last point.
. 20 I am now clear that there is another piece of 21' testimony from Ms. Moriearty, and I had confused those. But 22 her input on the critique of the survey, as I understand it, 23 is that Dr. Dillman was critiquing, if you will, the 24 methodology narrewly construed, and Ms. Moriearty was 25 critiquing the types of questions, for example, which could
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2 JUDGE SMITH: Well, she was critiquing it from her 3 view of what the results should have been, and were not.
4 MR. TRAFICONTE: Yes.
5 JUDGE SMITH: And, therefore, that is empirical 6 evidence.
7 MR. TRAFICONTE: That it's an incorrect vehicle.
8 JUDGE SMITH: Yes. ,
9 MR. TRAFICONTE: Or an insufficient survey 10 vehicle.
11 JUDGE SMITH: Right, that was my understanding of 1
12 it. That that was empirical evidence that she found faults 1 13 in the survey. But her contribution was something has got 14 to be wrong with the survey because it doesn't come up with 15 what I know it should come up with. Th'at was the division 16 of responsibility, and she's indicating yes.
17 MR. TRAFICONTE: They do go together. I mean as I 18 understand them, they go together in the sense that they 19 would both be part of this discussion that we're having.
l 20 But I just want to represent that Dr. Dillman, if
{
1 21 I understand the nature of his expertise, would still need I I
22 the assistance of an individual with the kind of expertise ]
23 in this survey area that Ms. Moriearty has. I mean, that is 24 to say it would be a combined --
l 25 JUDGE SMITH: That's a validation rather than I
i Heritage Reporting Corporation l (202) 628-4888 ;
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( ,/ 1 methodological, or-is it methodological?
1 2 MR. TRAFICONTE: Well, I believe it's )
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3 methodological. If those terms are clear, and maybe they j 4 are fuzzy, but I think it's actually part of the methodology i 5 itself to have some understanding of the populations that l
6 you are attempting to survey and the kinds of questions you 7 would want to pose and the.way in which you would want to 8 pose them. That's methodological as is the more hard 9 mathematical components of how exactly you get an accurate 10 enough survey and what methods you use.
11 So we are not resisting that the two pieces go 12 together, but the only thing we're adding is that Dr.
13 Dillman would need the input, if you will, of someone with
-~3 s- 14 Ms. Moriearty's type of expertise focusing on this type of 15 population.
16 And just for the record, it would not be an 17 individual employed by the Commonwealth of Massachusetts.
18 JUDGE SMITH: It would not be.
19 MR. TRAFICONTE: It would not be. Ms. Morlearty
- 20 is an employee of the Commonwealth.
21 JUDGE SMITH: Yes, I know.
22 MR. TRAFICONTE: And it would not be.
23 JUDGE SMITH: So tell me that again.
24 MR. TRAFICONTE: She couldn't do it.
25 JUDGE SMITH: Right. Well, what I would envision py-T Heritage Reporting Corporation (202) 628-4888 l
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20072 1 would be a condition where, assuming that Dr. Dillman is i
2 available, that there be a contract entered into with a i 3 completion date agreed to by both sides of it. Dr. Dillman 4 can take advice from whomever he wishes -- l 5 MR. TRAFICONTE: Whomever, yes.
6 JUDGE SMITH: -- on the design, the way he 7 believes the design of it, with the understanding, however, 8 I would think, that it is his professional services that are .
9 being retained professionally, not as an employee of --
10 MR. TRAFICONTE: No.
11 JUDGE SMITH: -
professionally.
12 MR. TRAFICONTE: Right.
. 13 JUDGE SMITH: His professional services. He could 14 take advice from wherever he feels he needs it.
15 How d'oes that sound?
16 HR. DIGNAN: All right. I assume that if Dr.
. 17 Dillman comes to work for us under a consultant contract, 18 he's like any other consultant. He will build into his fee 19 and everything else everything he needs to do the survey. i 20 And where he takes his advice from is up to him. And it is 21 his professional judgment that we rely upon, and that 22 professional judgment presumably will be exercised, among 23 other things,.in where he seeks data or where he seeks 24 matters of design. J l
25 JUDGE SMITH: And he would accept or reject any l
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20073 n) k, 1 advice available to him,'but it's his professional
.2 responsibility.
3 MR. DIGNAN: That's right.
4 He would be -- I would envision it -- he would be 5 in the position of any other consultant to New Hampshire 6 Yankee, and I want that fully understood.
7 That does not mean that Dr. Dillman. reports back-8 to the Attorney General after every session with my people.
9 He would become an employee of New Hampshire -- excuse me --
10 a consultant to New Hampshire Yankee as much as any other 11 consultant who works for us in this matter subject to all 12 the same restrictions that any such consultant. So I' don't~
.p ~s 13- want to mislead anybody on that.
14 MR. TRAFICONTE: No , I --
15 MR. DIGNAN: In short, I'm not prepared to put an 16 agent for the Attorney General'in the company unless it's 17 you, John.
18 MR. TRAFICONTE: Why don't we talk about it. I 19 mean it might avail us to have --
- f. 20 JUDGE SMITH: In the first place, you've'got to 21 talk about availability.
22 MR. TRAFICONTE: Yes, that's _ right.
23 JUDGE SMITH: Why don't we adjourn tonight, and-24 the parties remain and talk more thoroughly.
25' MR. TRAFICONTE: All right.
[ Heritage Reporting Corporation (202) 628-4888
20074 j 1 JUDGE SMITH: Is that satisfactory?
l 2 MR. DIGNAN: Yes, Your Honor.
3 JUDGE SMITH: All right, we would adjourn and meet l 4 tomorrow at nine a.m.
1 5 (whereupon, at 4:40 p.m., the hearing was l 6 recessed, to resume at 9:00 a.m., Tuesday, April 25, 7 1989.)
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.-__-__:___________a
CERTIFICATE
(. T
)
This is to certify that the attached proceedings before.the United States Nuclear Regulatory Commission in the. matter of:
Name: Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2)
Docket No: 50-443-OL 50-444-OL (Off-site Emergency Planning)
Place: Boston, Massachusetts Date: April 24, 1989 j;- were held as herein appears, and that this is'the original
,'(
transcript thereof for the file of the United States Nuclear
' ~
Regulatory Commission taken stenogr'aphically by me and, 6hereafter reduced to typewriting by me or under the direction of the court. reporting company, and that the transcript is a true and accurate record of.the foregoing proceedings.
l' I1I / ,l
'I
/S/ A !Y/ / [
s v. - -
(Signature typed) : Donna L. Cook Official Reporter Heritage Reporting Corporation k HERITAGE REPORTING CORPORATION j (202)628-4888 l
, . , 'l