ML20246H512
| ML20246H512 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/09/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8367 ASLBP, OL, NUDOCS 8903200244 | |
| Download: ML20246H512 (34) | |
Text
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NUCLEAR REGULATORY COMMISSION
....____.............__.......__..........................q ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
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Docket Nos.
PUBLIC SERVICE COMPANY OF
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50-443-OL NEW HAMPSHIRE, et al.,
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50-444-OL
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OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2)
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PLANNING I
O Pages:
15812 through 15843 Place:
Bethesda, Maryland Date:
March 9, 1989
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HERITAGE REPORTING CORPORATION OBk*IReponm O
1220 L Street, N.W., Suite 600 Washington, D.C. 20005 (202) 628-4868
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' UNITED STATES NUCLEAR REGULA."ORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD l
In the Matter of:
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)
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Docket Nos.
PUBLIC SERVICE COMPANY OF
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50-443-OL NEW HAMPSHIRE, et al.,
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50-444-OL
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OFF-SITE EMERGENCY l
(SEABROOK STATION, UNITS 1 AND 2)
)
PLANNING 1
TELECONFERENCE
- Thursday, March 9, 1989 U.S. Nuclear Regulation Commission 4350 East-West Highway Bethesda, Maryland The above-entitled matter came on for hearing,
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pursuant to notice, at 2:30 p.m.
BEFORE:
JUDGE IVAN W.
SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory' Commission Washington, D.C.
20555 JUDGE JAMES H.
CARPENTER, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE RICHARD F.
COLE, MEMBER Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Heritage Reporting Corporation (202) 628-4888 1
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. APPEARANCES:
For the Acolicant:
THOMAS G. DIGNAN, JR.,
ESQ.
Ropes.& Gray
.J
'225 Franklin. Street j
Boston, MA 02110 For the NRC Staff:
d SHERWIN E.
TURK, ESQ.
ELAINE CHAN, ESQ.
Office of General Counsel U.S. Nuclear Regulatory. Commission
.i Washington, D.C.
20555-i i
For the Federal Emeroency Manacement Acency:
l H.
JOSEPH FLYNN, ESQ.
Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C.
20472 For the Commonwealth of Massachusetts:
q ALAN FIERCE, ESQ.
O Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, MA 02100 Heritage Reporting Corporation (202) 628-4888
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PROCEEDINGS 8
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2 JUDGE SMITH:
Judge Cole and Judge Carpenter are 3,
3 present.
Judge McCollum is not.
4 The principal reason for-this conference this 5
afternoon was a request that arrangements be made for FEMA's f
6 witness to be the lead off witness.
And, Mr. Flynn, I 7
believe, Mr. Pierce talked to you today and forewarned you 8
that that would be the subject matter of this afternoon's 9
conference call.
10 MR. FLYNN:
Yes, he did.
I was aware of that.
11 JUDGE SMITH:
Do you have any comment to make on 12 that?
13 MR. FLYNN:
Yes,.Your Honor.
I think at one time i
14 on the record during the prehearing conference I had j
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15 suggested that arrangement, and from the prehearing order 16 that came out, I assumed, although it was not explicit in 1
17 the order, that that was not the Board's preference.
So I 18 have talked further to Mr. Donovan and the people at FEMA, 19 and it is the Agency's preference that we follow the 20 traditional order of having the FEMA witnoss last.
21 I recognize that there is some merit to having the 22 FEMA witness to go first under the circumstances of this 23 particular case.
It would cause us some inconvenience 24 because Mr. Donovan has arranged his schedule on the 25 assumption that he will not be testifying the week of the Heritage Reporting Corporation (202) 628-4888
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'1 21st, although clearly our convenience should not be the.
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2 determining factor.
3 I think the important factor in the consideration 4
of the people at FEMA is that -- well, there are two things.
5 We think it's inappropriate for us to be carrying 6
essentially what is the Applicants' burden, or putting 7
ourselves in the positi'on of inviting that perception.
And i
8 it also makes sense for us to have heard the testimony of 9
the Applicants and.the Interveners before defending the 10 testimony and the findings that we have already submitted.
11 JUDGE SMITH:
I think the latter point might very 12 well be presented as an argument against your position, Mr.
13 Flynn.
i 14 MR. FLYNN:
Why is that?
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15 JUDGE SMITH:
That the Attorney General may wish 16 you to defend the FEMA report without being more educated 17 into other people's views.
I don t know.
I will let i
18 Traficonte speak for himself on that.
19 Mr. Traficonte, are you present?
j 20 MR. FIERCE:
No, Your Honor, this is Alan Fierce.
21 John is not in today, and he called from home, asked me to 22 cover this call for him.
23 But I think that would prer
'>ly express his views, 24 your statement of it just a moment ago.
25 JUDGE SMITH:
We have an unusual situation here Heritage Reporting Corporation
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'1 where both the Attorney General and the Applicants have
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2 joined in the request that we do arrange it for FEMA to go 3
first.
And I think maybe the better approach would be for' 4
FEMA.to defend its evaluation of the SPMC as the first item l
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5 of business.
And then if FEMA believes that after the rest 6
of the testimony is in it has a responsibility to complete 7
the record or make sure'the record is accurate, that you 8
come on back.
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MR. FLYNN:
Well, Your Honor, if that'is the i
10 ruling of the Board, I will certainly accept that.
I simply 11 want to state for the record that that is not our i
12 preference.
13 JUDGE SMITH:
Well, we will request that you do it 14 then in'any event.
I think that is a more logical approach.
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15 and a fairer approach, Mr. Flynn.
16 I do recognize that our memorandum and order 17 setting out the schedule did give you every reason to 18 believe that you would be coming last.
But the arguments of 19 the parties are persuasive that it would be better for you 20 to be the lead off in defending the report.
21 MR. FLYNN:
Well, as I say, I understand the point 22 that you are making and I will accept that.
23 JUDGE SMITH:
All right, thank you, appreciate it.
24 What is the next item we have here?
25 Ms. Chan, have you worked out your discovery l
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dispute with Mr. Fierce on the Exercise Contention 19?
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2 MS. CHAN:
Your Honor, I believe we are going to 3
discuss the documents that I am providing right after this 4
telephone call, and I think that our dispute will-be 1
5 resolved after that.
6 MR. FIERCE:
I ven't guarantee it, Your Honor.
I 7
did want to see what she is producing before I made any 8
decision about what to do with our motion.
Even though she 9
is giving me documents, she tell me tomorrow, I still may 10 want to pursue the motion for extra time.
But I did want to 11 see what she gave me first.
12 MR. TURK:
Your Honor, this is Sherwin Turk.
I'am 13 sitting with Elaine Chan.
14 JUDGE SMITH:
Yes.
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15 MR. TURK:
'I want to note one thing for the record 16 while we are here.
And that is that the subject of Mass 17 AG's inquiry is addressed by an NRC Staff inspection report 18 which Mass AG has had for some time and which in fact is the 19 basis for his attempt to raise the contention in the on-site 20 proceeding dealing with the performance of the Applicants' 21 people during the exercise.
22 There is a portion of the Mass AG's motion, 23 though, which asserts that he needs more time for 24 depositions.
I dont think that can be supported, and we 25 will be happy to address that when we see if Mass AG really i
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wants to press.
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2 MR. FIERCE:
Your Honor, that can be supported 3
entirely.
But apparently Mr. Turk wants to argue the motion 1
4 even before I have decided whether to press it.
5 MR. TURK:
No, I'm --
6 MR. FIERCE:
If I do press it, there is a very 7
substantial argument that counters what he just said.
8 MR. TURK:
I don't care to argue it now.
Let's 9
see if we can resolve it.
10 I also want to note, nonetheless, that Staff had 11 presented -- had produced documents in response to another 12 Intervenor dealing with the exercise, and that request that l
13 asks for all Staff documents concerning the adequacy of the l
14 exercise, and we produced documents at that time, and we 1
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's 15 have turned up very little beyond that. We are, of course, 16 going to produce everything now to Mass AG.
17 But I think ultimately just for scheduling
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18 purposes, I indicate my belief that I don't think we are 19 going to find any need to extend the schedule.
20 JUDGE SMITH:
You don't think what?
21 MR. TURK:
We will find any need to extend the j
22 schedule to accommodate Mass AG on this.
23 JUDGE SMITH:
So there is nothing for the Board to 24 do now, right?
25 MR. FIERCE:
I would ask you to hold off a day.
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1 If I indicate tomorrow that I am withdrawing the motion, I
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2
. ill let everybody know.
Otherwise, I would ask everybody w
3 to presume I am pashing ahead, and would ask for their 4
responses within a very short period of time, and have the 5
motion decided by the Board.
6 JUDGE SMITH:
Mr. Turk, is the Staff sitting on
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information which is re'sponsive to the request and that for l
8 one reason or another it chooses not to reveal?
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MR. TURK:
No, we are about to produce, Your i
10 Honor.
We have a small set of documents that we are going 11 to produce.
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12 JUDGE SMITH:
And is it.your view that that will 1
13 be.everything?
Well,.of course, there is a request for 14 depositions, too.
Will that be satisfied, do you believe?
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15 MR. TURK:
I don't know that we are going to agree 16 to depositions, Your Honor.
i 17 JUDGE SMITH:
Well, it's time for these things to 18 be decided, I guess.
.i 19 MR. TURK:
Your Honor, we haven't been presented 20 vith any particular request for ir.dividuals.
21 JUDGE SMITH:
Oh, you were asking to provide the 22 names, right?
23 MR. TURK:
Yes.
24 JUDGE SMITH:
And you are going to do that?
25 MR. TURK:
We had done that as far as the Heritage Reporting Corporation
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' ' nspection report which was served on Mass AG, I 7uld say, i
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2 four or five months agc.
The inspection report alan?
3 MR. FIERCE:
Your Honor, he is forcing me to argue 4
this today when I wasn't prepared to do so.
5 JUDGE SMITH:
All right.
My. concern is -
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MR. FIERCE:
The inspection reports'-- all he 7
needed to do when I sent that motion out, that request for 8
information out six weeks ago, was call me back and say, 9
Alan, all the names are in the inspection reports of such 10 and such a date period.
That's all he needed to'do and he 11-never did that.
12 Yesterday, he tells me, after I filed the motion 13 and he calls me up.
Yesterday, he tells me those are the j
14 names.
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15 Thank you very much, but I didn't know that'until 16 yesterday.
That's the delay.
Six full weeks that was 17 totally unnecessary.
38 MR. TURK:
Let me clarify, Alan.
I didn't say 19 those are the names.
I said, in the inspection report you j
l 20 have the names of the staff who were involved in the 21 exercise inspection.
22 As you know, the same inspection report deals with 23 the PAR generation.
24 HR. FIERCE:
I don't think at this late date 25 pointing to those exercise reports does it when all you l
Heritage Reporting Corporation (202) 628-4888 l
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1 needed to do six weeks ago was give me a phone call.
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2 MS. CHAN:
Alan, why don't we just go through the 3
documents after the call and we --
4 MR. FIERCE:
That's what I was prepared to do, 5
Elaine, but Sherwin forced me into this one.
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JUDGE SMITH:
Well, it's sort of the Board forcing j
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you into it.
If you do'n't work it out, what are we going to 8
do?
When are we going to do it?
9 MR. FIERCE:
Well, I have a motion pending, and I 10 would ask that the Board hear the responses from the other 11 side and make a decision.
12 JUDGE SMITH:
Well, it is very late to be doing 13 business as usual.
14 MR. FIERCE:
I asked for expedited relief.
I O) q, 15 think I said something like opposition to be filed within 16 two days.
That would be perhaps tomorrow.
17 If Elaine gets me the documents tomorrow, I will 18 then know what I have.
Whether I decide to withdraw the 19 motion or not is going to depend to some extent anyway on 20 what's in them.
21 JUDGE SMITH:
Okay.
22 MR. FIERCE:
I'll look and see what it is before I 23 make that choice, that decision, i
24 JUDGE SMITH:
I just get the general impression j
25 that the Staff has been moving in a very relaxed way.
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MR. FIERCE:
That's my impression, Your Honor, and O(_/
2 why file the motion.
3 JUDGE SMITH:
We just don't hear much from the 4
Staff anymore.
You know, we sort of miss you.
5 MR. TURK:
Your Honor, let us note that this is 6
the second search we've made for the same type of j
f 7
information.
We had already made one production in response 8
to the Town of Hampton's request.
We made that production 9
back in January, January 27th.
That production included 10 documents written by the Staff concerning the adequacy of 11 the exercise.
Mass AG has had that already for a month and 12 a half.
They have had the inspection report for four or 13 five months.
14 They have now got a further request in for a broad
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15 category of documents, and we have made another search.
16 JUDGE SMITH:
But that request was made on January 17 24th.
18 MR. TURK:
Well, we -- that is,true, Your Honor.
19 JUDGE SMITH:
Have you been working on it?
20 MR. TURK:
Oh, yes.
21 MS. CHAN:
Yes, Your Honor.
22 JUDGE SMITH:
Okay.
23 MS. CHAN:
This matter was handled by the region, 24 and all the people in the region who would have any of the 25 documents have been at various exercises, and we just Heritage Reporting Corporation
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1 received the documents by Express Mail 1and we're expediting u
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2 the forwarding of them to Massachusetts Attorney General's i
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office.
4 JUDGE SMITH:
All right.
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5 MR. TURK:
Your Honor-chere is.one other' point on
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6-this that I would like.to mention at this time.
7 The discovery request at issue. concerns
,8 Massachusetts Exercise Contention 10.
That contention 9
concerns whether the CAR generation, corrective action 10 recommendation generation during the exercise was adequate, y
11 We the. staff had initially seen this contention as 12
' raising a challenge to the ORO's performance during the 13 exercise rather than to the on-site New Hampshire Yankee 14 recommendation of protective action. recommendation.
'( f 15 Now in going'back, I am still a little bit puzzled 16 whether we really need to.get into the Staff evaluation of 17 on-site personnel.
And I would be' interested in having a 18-clarification on whether the contention in fact is permitted 19 to raise the on-site personnel's performance, which was the i
20 subject of a Staff inspection rather than a FEMA inspection,
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12 1 or FEMA. exercise determination.
l 22 JUDGE SMITH:
You are saying that the contention 23 by its terms, in your view, did not raise that issue?
Or 24 are you saying that that is beyond the realm of their l
25 permissible -- beyond the litigation?
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MR. TURK:
Until a point in mid-February of-this.
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2 year, we had assumed that'the contention was addressing.ORO, 3
and that it would be covered by the FEMA exercise _ report.
4 Only in mid-February do we take a more liberal reading of 5
the contention.and say, well, maybe the Mass-AG's office has I
1 6
a point and that perhaps the Board intended to admit an 7-issue here dealing with the on-site personnel's performance.
'8 It's not entirely' clear to us, and we would 9
appreciate clarification.
10 MR. FIERCE:. I don't frankly understand, Your-11 Honor, how they could have missed this point when the very 12 first line in the contention says, "The exercise revealed a 13 fundamental flow in the Seabrook Station Radiological Plan 14 and Emergency Response Procedures in that during the
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15 exercise the Licensee's personnel did not use appropriate 16 protective action recommendation," et cetera, et cetera.
17 JUDGE SMITH:
And your point is, and what is your i
18 point again, Mr. Turk?
19 MR. TURK:
Well, we frankly were confused on this 20 as to whether or not it's the ORO's performance in a 21 protective action recommendation that issue, or whether it's l
22 the licensee's on-site protective action recommendations 23 which they then made to the ORO and the State of New 24 Hampshire.
25 MR. DIGNAN:
Your Honor, this is Tom Dignan.
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1 One thing we ought to go into this next, but I j
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2 would point out --
3 JUDGE SMITH:
Can't hear you, Mr. Dignan.
4 MR. DIGNAN:
You can'6 ' war me?
5 JUDGE SMITK:
Now I can, yes.
6 Mr. Dignan?
Is anybody there?
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MR. DIGNAN:
Yes, something's wrong here.
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JUDGE SMITH:
Are you using d speaker phone?
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One of these days, Mr. Dignan, I am going to come j
10 marching in your office and find out what kind of a 11 telephone you have there.
I know there is something' 12 mysterious about it.
i 13 Are you there?
14 Let's have a roll call.
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15 MR. DIGNAN:
Your Honor, can you hear me now?
16 JUDGE SMITH:
Yes.
17 MR. DIGNAN:
Okay.
18 JUDGE SMITH:
What's going on down there.
19 MR. DIGNAN:
Now, can you hear me now?
l 20 JUDGE SMITH:
Yes, great.
21 MR. DIGNAN:
Okay.
What I have is a speaker 22 phone, but I am not using it.
Something went screwy here.
23 The thing is that all I wanted to bring up is 24 this.
If what'I am hearing from the Commonwealth now is 25 that they somehow have a contention in here where they are Heritage Reporting Corporation
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going to get.at the performance of the on-site people at
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2 Seabrook Station, I would remind the Board that they tried 3
to file a contention of that nature with the On-site Board.
4 The On-site Board threw it out as late filed.
They are on 1
5 appeal to the Appeal Board with it right now.
6 MR. FIERCE:
Different contention.
Different l
7 nature altogether.
8 MR. DIGNAN:
And the general theme of that whole q
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thing is that if the name of the game was the performance of 10 the people on the site, it belonged over at the On-site j
l 11 Board when, as and if they filed it in the first place.
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j 12 That has got a long history to it.
.j 13 We have always viewed this contention as being a 14 performance contention.
That is to say, the performance of g
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15 the ORO in reacting to what they. heard from whoever they 16 heard it from; not a question of the performance of the 17 people on site.
That simply was never within the l
18 jurisdiction of this Board, and it was within the L
I 19 jurisdiction of the other Board, and they tried to get this
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20 kind of stuff in late filed, and they lost it.
21 MR. FIERCE:
This contention has always been there l
22 for everybody to read plainly for what it says.
If you read l
23 the first sentence of the contention, the contention 24 statement itself.
25 MR. DIGNAN:
Well, in that case, it should not Heritage Reporting Corporation
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have --
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MR. FIERCE:
It's an off-site issue, not an on-3 site issue.
4 MR. DIGNAN:
In that case, Mr. Fierce, 11 that's 5
your view of the contention, then I respectfully suggest, j
6 Your Honor, it should not have been admitted.
The Board out 7
to reconsider having admit it, and throw it out right now.
8 MR. FIERCE:
The Board knows full well what it was 9
doing when it admitted this contention.
I think if you read 10 the Board's decision on contentions, it's clear.
11 JUDGE SMITH:
We did not, in my metaory, we did not 12 focus on the distinction between on site and off site.
We 13 were thinking generally about off site throughout all the 14 contentions that we have admitted.
I am going to have to go
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15 back and look at our reasoning; see what the -- I don't 16 recall any briefing from the Staff or Applicants saying that 17 it was on site or off site.
I assumed that they thought it 18 was off site.
19 I know that we talked a great deal in our 20 contentions on the SPMC about where we believe that the on 21 site stopped and the off site begun, and that there was a 22 margin where it may be both.
I just don't know as I sit 23 here right now whether it should be in or out.
But 24 apparently everybody thought it was clearly an off-site 25 contention.
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MR. FIERCE:
And it is, Your Honor.
It has
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2 nothing to do with the other contention which dealt with the 3
response of control room players and others in the EOF who 4
were looking at 5
JUDGE SMITH:
Yes.
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6 MR. FIERCE:
-- the safety of the plant itself and l
I 7
responding to the accident.
8 JUDGE SMITH:
No, it was more than just a 9
change in the plant.
10 MR. FIERCE:
-- late for protective action.
11 JUDGE SMITH:
The contentions that we did not 1
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12 accept in SPMC was that aspect of emergency action level 13 classifications.
14 MR. FIERCE:
It has nothing to do with that.
()s s.
15 JUDGE SMITH:
Notuing.
This has nothing to do 16 with emergency action level classifications.
17 MR. FIERCE:
They have those classifications, but 18 it also looks to their plan and to an exercise objective 19 which was for that organization to provide off-site 20 officials end appropriate authorities with protective action 21 recommendations for the off-site public.
And if you follow 22 it through, you will find that New Hampshire and the ORO f
l 23 uses those recommendations and treats them with great l
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24 significance.
And it turns out in many instances, we 25 believe, those off-site PAR recommendations that emanate Heritage Reporting Corporation
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from:the Seabrook Station response organization were i.
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2 inappropriate.
3 JUDGE SMITH:
Well, I am not discussing.now the 4
materiality of the issue.
I am discussing now the i
't 5
jurisdiction of it.
i 6
MR. TURK:
Your Honor, let me noto for the Staff 7
that our initial reading of the contention was that it was.a 8
challenge to the protective action recommendations which 9
were made for protection of persons off site during the 10 exercise.
11 MR. FIERCE:
There is no rational reading of that 12 contention that you could come to that conclusion.
You are
'13 trying to --
r 14 JUDGE SMITH:
Gentlemen, gentlemen --
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l 15 MR. FIERCE:
-- my contention.
That's what you 16 are trying to do here.
17 MR. DIGNAN:
Let's assume Alan is right that.there 18 is no rational reading.
They I would ask the Board to 19 relook at the contention and decide whether it was in their 20 jurisdiction in the first place.
21 MR. FIERCE:
I move that that motion is out of 22 place unless Mr. Dignan wants to file a motion for summary 12 3 disposition.
The contention has been admitted.
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24 JUDGE SMITH:
Look, if we admitted a contention as 4
i 25 to which we don't have jurisdiction, then even then you Heritage Reporting Corporation
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don't have a contention.
We do not have the authority to do
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2 anything in this litigation where we don't have jurisdiction 3
even if the parties were to agree to it.
We will have to 4
look at it.
5 If it is intended to be a decisionmaking on site, 6
and don't forget, when we talked about the DPMC, we 7
recognized that there had to be a place where the decision, 8
the protective action recommendations moved from on site to l
9 off site, and that some' issues may be right at the margin, J
10 and that there would be no jurisdictional void.
I recall 11 that.
i 12 We-will just have to go back and look at it again 13 and see where this falls.
14 MR. FIERCE:
Your Honor, if you are going to do
(~' t 15 that, take a look at the same time at' MAG Ex. 11, which is J
16 another contention that was admitted and directly challenges 17 the way the ORO went about making protective action 18 decisions.
19 JUDGE SMITH:
Okay.
20 MR. FIERCE:
Mr. Turk's reading would be a l
21 duplication, would turn MAG Ex. 19 into a duplication of a 22 contention that's already there.
23 JUDGE SMITH:
All right, we will do that this very 24 afternoon.
25 In the meantime, you are going to proceed with i
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exchange of information so we don't lose time.
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MR. TURK:
Yes, Your Honor.
We are doing that 3
even though we still have a feeling that we will be 4
producing things which are not within the jurisdiction of 5
the Board.
But we will produce and then argue.
6 JUDGE SMITH:
Yes.
Just avoid wasting time.
7 Now, does anybody recall offhand what the SPMC 8
contention was where that issue was raised?
I'll find it.
9 MR. FIERCE:
The SPMC contention.
No, I don't 10 recall.
11 JUDGE SMITH:
That is where we set out our 12 understanding of where on site and off sito emergency 13 actions generically speaking rested.
And we will go back to 14 that and see what guidance it gives us, h
15 MR. TURK:
Your Honor, if I may also note for 16 context.
When Mass AG raised the contention before the On-17 site Board, they challenged certain aspects of the same 18 exercise carried out by the on-site personnel.
In the same i
19 NRC inspection report which addressed those issues, that is, 20 whether there was questionable engineering judgment 2t exercised by on-site personnel, the same NRC staff 22 inspection report addressed whether the CAR recommendations 23 were appropriate.
And the Staff's conclusion was, yes, they 24 were.
25 But it was the same on-site inspection team, the Heritage Reporting Corporation (202) 628-4838 ggg
15832 1
same on-site inspection report addressing an issue which
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2 Mass AG has raised before the On-site Board and the issue 3
which they are raising here.
4 MR. FIERCE:
I don't think there is any question.
5 that it's the same evaluators.
I think this is the point.
6 Mr. Turk would like to draw the line at the difference 7
between on site and off site as anything having to do with 8
that organization.
That's clearly just not the case.
9 There are a number of aspects of Seabrook Station 10 ERO personnel which deal with off-site response, and this is 11 one of them.
12 JUDGE SMITH:
Mr. Fierce.
13 MR. FIERCE:
Yes..
14 JUDGE SMITH:
How does this contention differ from
()
15 the contention you proffered to the On-site Board?
.16 MR. FIERCE:
If you take a look at that 17 contention, Your Honor, it's primarily a technically-based 18 contention dealing with the inadequacy of the response in 19 the control room and elsewhere to plant conditions and their 20 ability to assess the accident on site to understand what 21 was happening with that accident on site.
22 JUDGE SMITH:
What does it have to do with 23 protective action recommendations?
24 MR. FIERCE:
It doesn't have to do with off-site 25 protective action recommendations at all.
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JUDGE SMITH:
Okay.
Well, we will go back and lll 2
look at it.
3 MR. FIERCE:
Your Honor, and as you do that I want 4
to give you one additional suggestion, if I could.
5 Even though MAG Ex. 19 may appear to some to have 6
Bases A, B,
C, which was stricken pertaining to the State of l
7 Maine, and D, if you read the contention the way it was 8
intended to be drafted, it says, " Exercise results which 9
individually or collectively form the basis for this 10 contention include the following."
A, B,
C and D are 11
' intended to be read together as if it were one basis.
12 The contention says, "Seabrook Station's emergency 13 response organization didn't issue appropriate protective 14 action recommendations," and here is why.
A, for the ORO it lll 15 didn't do it.
B, for New Hampshire, it didn't do it.
C,
- 1. 6 for Maine, it didn't do it.
And D does stand somewhat 17 alone.
It says that to some extent it appears that what 18 happened and why the PARS were bad.
Something wrong with 19 the Medpac model.
And that, of course, is a Seabrook 20 Station emergency response organization tool.
21 JUDGE SMITH:
All right.
22 MR. FIERCE:
The ORO doesn't have Medpace.
That's 23 one reason right there why Mr. Turk couldn't have read this 24 to be an ORO-related contention.
25 JUDGE SMITH:
Okay.
Heritage Reporting Corporation (202) 628-4888
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MR. TURK:
It certainly was confusing to us,'and
).
2 we would welcome clarification.
3
~ JUDGE SMITH:
You know,_I'll have to confess to 4
being. confused here because I'have been aware of the.
5 controversy discovery on the Medpac model and that it'seems 6
to me to be largely an on-site aspect.
7 We will just go back:and study it afresh and see di 8
'where we are.
We_will do that this afternoon and try to 9
communicate tomorrow.
10 All right, do you have anything else this 11 afternoon?
y.
12 (No response.)
13
. JUDGE SMITH:
Could you give us a better idea of 14 what's happening on that ETE stipulation?
)
'15 MR. DIGNAN:
Your Honor, I think from what I know 16 and I have not'been active in the negotiations,.my.
17 colleague, Mr. Trout has been.
With your permission, I 18 would just as soon duck that one.
19 JUDGE SMITH:
Well, I 20 MR. DIGNAN:
Just simply because I understand 21 there is some controversy developing, but I don't know that 22 the cause of possible settlement would be' furthered by 23' bringing it up before the Board at this time.
24 JUDGE SMITH:
Well, I don't want to do anything l
25 that might --
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MR. FIERCE:
I-think I would concur with Mr.
/~
2 Dignan.
I think the two of us need to confer a little 3
further before we can even give you a status report right 4
now, Your Honor.
l 5
JUDGE SMITH:
My concern is I don't want it next 6
week.
I don't want it the day before the hearing.
I don't 7
want it during the hearing.
We have time to work on these 8
things now.
9 However, again, I look at the stipulation; 10 suggests that such a stipulation is very desirable; or the 11 subject matter at least.
And if haste is going to. endanger 12 it, we will handle it when it comes up.
13 But is there no possibility of resolving the i
14 jurisdictional aspect of it timely?
()
15 MR. DIGNAN:
You mean bringing it back from the 16 Appeal Board?
17 JUDGE SMITH:
Yes.
18 MR. DIGNAN:
I don't think that's the problemf 19 Your Honor.
20 JUDGE SMITH:
Well, the problem is that's going to 21 take time.
22 MR. DIGNAN:
Yes, I understand it's going to take 23 time, but the problem is not the question of bringing it 24 back from the Appeal Board.
The problem is whether it can 25 stick together or not at this point as a matter of Heritage Reporting Corporation
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settlement.
. f)
(,/
_2 JUDGE SMITH:
Would any assistance from say 3
perhaps another judge not involved in the case, a so-called 4
settlement job be useful to you?-
5 MR. DIGNAN:
I think there may -- my problem is, 6
quite frankly, this, Your' Honor, to be perfectly candid with 7
you.
8 Mr. Fierce is discussing'this, as I understand it f
9 from the AG's office, with Mr. Trout of my office.
And_I am 10 not fully up to speed as to exactly where everything stands l
11 now.
I do know, from talking to Mr. Trout this morning, 12 there appear to be some problems.
I am in no position to 13 say how bad the problems are.
Alan may be in a better 14 position than I am.
()J 15 But I am just suggesting to you, or I guess I am 16 pleading with you that I am not sure that we would further 17 the ball game by getting it out on the table now.
We might 18 be in a position to do that te-trow if it hasn't been 19 resolved.
20 MR. FIERCE:
And now just to bring'everybody up to I
i 21 speed from my standpoint, I did call Mr. Trout and also Mr.
I 22 Smith yesterday, and I asked a question for them, and the 23 question essentially is do we have a problem.
I am waiting 24 for them to call me back with some information.
I don't 25 know whether we have a problem.
There is a potential for a I
Beritage Reporting Corporation (202) 628-4888
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15837 1-problem.
A t _)
2 JUDGE SMITH:
I am going to leave it-alone.
s 3
MR. FIERCE:
Okay.
It's too hot right now, and we 4
are all waiting for further information.
5 JUDGE SMITH:
All right.
But time is running out.
6 MR. FIERCE:
We understand that.
7 JUDGE SMITH:
All right, anything further we can 8
be helpful or damaging to this afternoon?
9 (No response.
10 JUDGE SMITH:
All right, we will adjourn and then 11 get back to you tomorrow.
I don't know if we will have a 12 transcript tomorrow or not, but we will try to get to that 13 Contention 19 this very afternoon, and announce our decision 14 maybe this afternoon if possible, but no later than
()
15 tomorrow.
16 If there is nothing further we will adjourn.
17 MR. FIERCE:
Can Ms. Chan stay on the phone so I 18 can speak with her?
19 MS. CHAN:
Yes, Alan, I will stay on the phone.
20 MR. DIGNAN:
This is Dignan.
I am signing off 21 now.
22 JUDGE SMITH:
Well, wait a minute, we have another 23 matter before you leave.
24 By way of inventory, the only thing that the Board i
25 has before it now is that motion for sanctions, and decide 1
4 Heritage Reporting Corporation (202) 628-4888
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1
-whether MAG Contention 19 was properly admitted if it is an
'l f')
- (,r.
2 on-site contention.
l 3
Is anybody. aware of any other-task we have,before 1
4 us?
5 You know, we issued an order yesterday on the l
l 6
financial qualification petitions.
1 7
MR. DIGNAN:
'I haven't seen that.
8 JUDGE SMITH:
Well, that is done.
We denied those 9
petitions.
10 So are you aware of anything else?
11 MS. CHAN:- Your Honor, I believe there were a 12 couple of subpoenas by Mass AG before the Board for school 13 superintendents?
14 JUDGE SMITH:
Ms. Chan, we faxed those and sent
)
15 them by Express Mail yesterday.
16 MS. CHAN:
All right.
17 JUDGE SMITH:
Two out of the three; Mr. Block l
18 withdrew one of them.
19 MR. TURK:
Your Honor, one other question about 20 scheduling.
With FEMA going first, what's the balance of 21 the proceeding going to look like?
22 JUDiE SMITH:
Well, you weren't present yesterday 23 with a discussion between Mr. Traficonte and Mr. Dignan 24 which, as a consequence of the Board's prodding and Mr.
25 Traficonte's urging, we have asked Mr. Traficonte and Mr.
Heritage Reporting Corporation
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15839 1
Dignan to go back to negotiate broader categories of issues,-
i 13's) 2 what was the word that was used?
Clusters of issues that 3
would be hurting, and cluster by clus er rather than l
4 entirely party by party or contention by contention.
But I 5
have the issues somewhat broader than they are categorized 6
now and try to accommodttte as much as possible Mr. Dignan's 7
concerns that he would like to have a cohesive presentation l
8 by each party, the Board's concerns that it is difficult for 9
us to understand the issue as well as we might when the two l
10 different positions are separated by a large amount of time, 11 and Mr. Traficonte's strong urging that he wants to hear it l
\\
12 issue by issue.
i 13 So we have asked them to go back and enlarge the 14 categories of issues so that there can be more of a party by
()
15 party showing, but still have continuity in the issues.
16 MR. FLYNN:
Your Honor, this is Joseph Flynn.
17 That raises an issue for me.
One of the concerns 18 that I expressed early on, as early as the prehearing 19 conference, was that I don't want Richard Donovan to have to 20 make a dozen trips across the country.
l 21 MR. DIGRAN:
He is going to go and do his whole 22 thing at one shot.
The clustering is only for the Applicant
]
23 and the Attorney General.
24 MR. FLYNN:
Thank you.
25 JUDGE SMITH:
Well, that's one shot.
However, we Heritage Reporting Corporation
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do want FEMA to feel welcome to come back in at the end and r~g
~_t 2
make sure that the record, somewhat.the way the NRC Staff l
\\
3 does, that the record is satisfactory to them, too.
4 MR. FLYNN:
No, and I undarstand and appreciate 5
that opportunity.
I didn't want to get involved in a 6
situation like we had in the New Hampshire hearings where we I
1 7
had FEMA witnesses at different intervals throughout the f
8 hearings.
It made sense then because our witnesses were I
9 local.
10 JUDGE SMITH:
Well, I certainly hope we don't have f
'.1 a repetition of the last hearing in that respect.
q 12 MR. FLYNN:
No, I really don't see the potential 13 for that, Your Honor.
14 JUDGE SMITH:
I do have another housekeeping
]
()
15 matter.
The parties have been rather careless in serving 16 the Board with papers that we need.
You always served us i
1 17 with papers that are being filed on appeal.
That has been a 18 large area of neglect.
1 19 Mr. Turk, I have been in communication with the l
20 docking and service branch and trying to get them to have a 1
21 more up-to-date official Commission, NRC service list.
And 22 I am going to try to whittle it down to those who are very 23 active people.
24 And also, when that is done I would -- my request 25 that the NRC Staff -- well, we are going to try to get a Heritage Reporting Corporation l
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consolidated service list so that no matter if it is on site
$ )~
2, or off site, both boards will be served with the documents.
3 For example, and perhaps you noticed that the 4
Commission itself in its memorandum and order on the 5
scheduling matter called their order an-on-site order when 6
actually it was on the off-site proceeding.
And to this 7
very moment I have never been served.al copy of that 8
document.
9 So-we are going to try to get one consolidated 10 service list to serve both proceedings.
And then I would
.t 11 ask the NRC staff to make sure that we get everything that's l
12 filed in the Seabrook case.
13 MR. DIGNAN:
Your Honor?
-1 14 JUDGE SMITH:
Yes.
()
15 MR. DIGNAN:
This is Tom Dignan.
16 We have maintained here two service lists.
Now 17 would the Board members like to be on the so-called on-site 18 service list and receive those documents also?
19 JUDGE SMITH:
I think that we are probably on your 20 on-site service list.
I think we get everything that you 21 serve there.
I don't know.
22 MR. DIGNAN:
No, the distinction between our off-23 site and on-site service lists works out to be the only 24 differences that the licensing board members are different.
I 25 But if this Board wishes to receive all on-site material on Heritage Reporting Corporation (202) 628-4888
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1 appeals, we would be glad to change that..
}
(
2 JUDGE SMITH:
I hate to add to your already very 3
large service burden.
4 MR. DIGNAN:
No, that's all right.
5 JUDGE SMITH:
How about just sending one.
And l
6 then if it starts coming over as a mistake --
i 7
MR. DIGNAN:
Frankly, Your Honor, the way the j
8 computer works it's easier for us just to put the three 9
names on the list, because everything works automatically o
10 from there and it's a lot easier.
11 So we will put all three of the off-site board-12 members on the on-site service list.
13 JUDGE SMITH:
All right.
We will probably throw 1
14 away extra copies.
j
/~h I
(j 15 MR. DIGNAN:
I know.
A lot of people throw --
16 just don't throw away the stuff I write, Your Honor.
17 JUDGE SMITH:
Is there anything further?
18 MR. TURK:
Your Honor, just one question with 19 regard to your request that we be sure that docketing gives 20 copies of'all pleadings to you.
i 21 I will check with docketing to make sure they have j
l 22 our service list, that we are consistent.
23 JUDGE SMITH:
I think you are using your own 24 service list, and docketing and service has one which is 25 old, and inadequate, by the way, old and incomplete and has l
l Heritage Reporting Corporation (202) 628-4888
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~
1 a lot of people on it that need not be on there.
(f 2
MR. TURK:
I will share ours with them and make 3
sure they can adjust to ours or find some way to make them 4
consistent.
1 5
JUDGE SMITH:
Well, we will want-to be involved in 6
it too.
All right, I think that's all we need.
7 Anything further this afternoon?
8 (No response.)
9 JUDGE SMITH:
All right, we are adjourned.
Thank 10 you.
11 (Whereupon, at 3:06 p.m.,
the teleconference was 12 concluded.)
13 J
14
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15 16 1
17
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18 19 20 21 22 23 24 l
25 Heritage Reporting Corporation (202) 628-4888
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1 CERTIFICATE i~r
' (-)
2 3
This is to certify that the attached proceedings before the 4
United States Nuclear Regulatory Commission in the matter.
5 of:
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.,
6 Name*
(SEABROOK STATION, UNITS 1 AND 2) 7 8
Docket Number:
50-443-OL 50-444-OL 9
Place:
Bethesda, Maryland 10 Date:
March 9, 1989 11 were held as herein appears, and that this is the original
.12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the 15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings.
A/
18
/s RAYN N M. VETTER 19 (Signature typed) :
20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 h
Heritage Reporting Corporation (202) 628-4888
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