ML20247D445
| ML20247D445 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/22/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8673 ASLBP, OL, NUDOCS 8905250416 | |
| Download: ML20247D445 (96) | |
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o UNITED STATES U NUCLEAR REGULATORY COMMISSION O LG' N A _ !
ATOMIC SAFETY M4D I'ICENSING 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
\
Pages: 22171 through 22263 Place: Boston, Massachusetts
. Date: May 22 1989 6
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l 22171 G
' UNITED STATES NUCLEAR REGULATORY COMMISSION A" J' ATOMIC SAFETY AND LICENSING BOARD o
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, May, 22, 1989 Auditorium Thomas P. O'Neill, Jr.
Federal Building 10 Causeway Street Boston, Massachusetts ss, /. The above-entitled matter came on for hearing, pursuant to notice, at 1:10 p.m.
BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN
, Atomic Safety and' Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission-Washington, D.C. 20555 JUDGE RICHARD F. COLE, MEMBER
, Atomic Safety and Licensing Board U.S.' Nuclear Regulatory Commission Washington, D.C. 20555 i Heritage Reporting Corporation (202) 628-4888
22172 APPEARANCES:
For the Applicant:
THOMAS G. DIGNAN, JR., ESQ.
GEORGE H. LENALD, 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 5
For the NRC Staff:
SHERWIN E. TURK, ESQ.
ELAINE I. CHAN, ESQ. I EDWIN J. REIS, ESQ.
RICHARD BACHMANN, ESO.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 For the Federal Emercency Manacement Acencv:
k- H. JOSEPH FLYNN, ESQ.
LINDA HUBER McPHETERS, ESQ.
Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 For the Commonwealth of Massachusetts:
JAMES M. SHANNON, ATTY. GEN.
JOHN C. TRAFICONTE, ASST. ATTY. GEN.
ALLAN R. FIERCE, ASST. ATTY. GEN.
PAMELA TALBOT, ASST. ATTY. GEN. .
MATTHEW BROCK, ESQ. ;
LESLIE B. GREER, ESQ.
Commonwealth of Massachusetts .
One Ashburton Place, 19th Floor Boston, Massachusetts 02108 L Heritage Reporting Corporation (202) 628-4888 i
)
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22173 b'} c: APPEARANCES:' (Continued) s:t
- (/-
E2r the State of New Hampshire:
-*- GEOFFREY M. HUNTINGTON, ASST. ATTY. GEN. j State of New Hampshire i 25 Capitol Street i Concord, New Hampshire 03301 a l
For the Seacoast Anti-Pollution Leacue:
ROBERT A. BACKUS, ESQ.
.Backus,.Meyer & Solomon .
a 116 Lowell Street i P.O. Box 516 Manchester, _New Hampshire 03105 JANE DOUGHTY, Director Seacoast Anti-Pollution League 5 Market Street
'Portsmouth, New Hampshire 03801 For the Town of Amesbury:
- g BARBARA J. SAINT ANDRE, ESQ.
-t Kopelman and Paige, P.C.
-( 77 Franklin Street Boston, Massachusetts WILLIAM LORD Town Hall o- Amesbury, Massachusetts 10913 For the City of Haverhill and Town of Merr4mme, ASHOD N. AMIRIAN, ESQ.
P. O. Box 38 ,
Bradford, Massachusetts 01835 For the City of Newburyoort:
BARBARA J. SAINT ANDRE, ESQ.
JANE O'MALLEY, ESQ.
Kopelman and Paige, P.C.
77 Franklin Street
, Boston, Massachusetts 02110
/g.
Heritage Reporting Corporation (202) 628-4888
22174 APPEARANCES: (Continued)
~
- For the Town of Newburv:
R. SCOTT HILL-WHILTON, ESQ.
Lagoulis, Clark, Hill-Whilton & McGuire "
79 State Street Newburyport, Massachusetts 01950 ,
For the Tgwn of Salisbury:
CHARLES P. GRAHAM, ESQ.
- Murphy and Graham
. 33 Low Street Newburyport, Massachusetts 01950 i
For the Town of West Newburvi JUDITH H. MIZNER, ESQ.
Second Floor 79 State Street Newburyport, Massachusetts 01950 For the Atomic Safety and Licensino Board:
- ROBERT R. PIERCE, ESQUIRE ,
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 d
Heritage Reporting Corporation (202) 628-4888 1
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t' MITFESSES: DIRECT CROSS REDIRECT RECROSS EXAM
- . 'Witnep1
-s l Richard'W. Donovan -i by Mr. Traficonte- 22237 (Continued)
, EXHIBITS: IDENT. REC. REJ. DESCRIPTION:
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2 JUDGE SMITH: What is your position with respect
.3 .to the motion in limine?
4 MR. BROCK: Your Honor, based upon the discussion 5 Friday, it was my understanding -- and for the record we 6 have distributed Mass AG's response to Applicants' motion in 7 limine on the testimony of Mr. Sikich and Paolillo. If
,1 8 convenient for the Board, it is my understanding the Board 9 would review'that, _given that the testimony is presently 10 scheduled to be heard on Wednesday. And then tomorrow v
i' 11 morning I would be here. I believe Mr. Trout understood he
' 12 would be here tomorrow morning to either get the Board's 13 ruling at that time or take questions from the Board if need
. 14 be.
k
. 15- JUDGE SMITH: There was some thought among us that 16 you wanted to have a ruling this afternoon, but that was
. 17 tomorrow morning?
18 MR. BROCK: It would be fine with me for the 19 ruling this afternoon, Your Honor, but Mr. Trout is not 20 present.
21 JUDGE SMITH: Yes, I see.
.- 22 HR. BROCK: I don't know what Mr. Dignan's i
23- plessure us.
24 JUDGE SMITH: All right. It seems to me that the 25 matter is ripe for ruling on the papers.
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22178 1 MR. BROCK: Fine, Your Honor. I would agree with 2 that. ;
i 3 JUDGE SMITH: Any preliminary business before we .
4 resume?
5 MR. DIGNAN: Yes, Your Honor.
6 First of all, my apologies for being late. And 7 the reason I was late, I guess a copy has been distributed
, 8 to you of.a document entitled " Interveners' Motion for j 9 Reconsideration of CLI 8908, and Renewed Motion for Stay of 10 the Issuance of the Low-Power License in Light of a Present 11 and ongoing Litigation of an Issue Material to the Issuance 12 of a Low-Power License in the Full-Power Proceeding".
13 This document was handed to me and is the reason I 14 was late. I was reviewing it just as I was getting to come 15 down here. I would ask the Board to call back to memory MAG 16 EX Contention No. 19. This was a contention which the
, 17 Attorney General made --
18 JUDGE SMITH: Mr. Dignan, are you aware this 19 motion -
20 MR. DIGNAN: Is addressed to the Commission.
21 JUDGE SMITH: Yes, I just put it aside.
22 MR. DIGNAN: Yes. Well, the reason I am bringing .
23 it up to you is this. The thrust of this motion, if you 24 will go back to MAG EX-19, this was the contention which, 25 among other things, raised the question of the METPAC model.
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/~ 'N 1 And I argued to this Board at that time that if they were i !!
'\~ 2 going to raise a flaw in the EETPAC model, they should have 3 raised it way back when.
4 The Board turned me down because they said they 5 were raising it in the context of the license -- excuse 6 me -- of the exercise. And you admitted that contention.
7 The argument is now being made to the Commission that your 8 ruling was intended to admit into this proceeding an onsite 9 contention involving something that is relevant to the low- l 10 power license.
11 I cannot believe the Board meant to do that, and I i 12 would ask for a formal declaration that that is so, because 13 it would have been beyond the Board's jurisdiction to do
) 14 that. And it certainly was not the context in which this L. /
15 argument was made to you by either side.
16 MR. TRAFICONTE: If I might be heard, Your Honor.
. 17 JUDGE SMITH: You want something from us to carry 18 it up to the Commission.
19 MR. DIGNAN: Exactly.
20 JUDGE SMITH: I think what you are asking for is a 21 legal ruling, and I don't know if the Commission needs our
. 22 legal advice.
23 But go ahead, Mr. Traficonte.
24 MR. TRAFICONTE: Yes.
25 As a matter of preliminary business, I did
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I distribute to the parties and the Board today a copy of the 2 motion identified by Mr Dignan. The motion is dated May 3 22, 1989, and this morning some time between 9:00 and 10:30 .
4 a.m., I faxed copies of the motion to Applicants, the 5 Commission, and I believe the NRC Staff.
6 I wanted to distribute it to the Board for only 7 one purpose which was that we make representations in this
, 8 pleading to the Commission for a renewed motion for a stay.
9 We make representations concerning the docket essentially 10 and the issues presently being litigated in the full-power 11 proceeding. And I would take issue with how Mr. Dignan 12 described what we say in this motion, but the document 13 speaks for itself.
14 I just wanted to alert the Board that we have
{.
15 brought by motion and we have sought a further relief in the 16 form of a stay from the full Commission based on something
. 17 that is or has occurred in the full power proceeding that is 18 before Your Honors. It is informational only. We had no 19 other purpose in providing the Board with a copy.
20 JUDGE SMITH: So, Mr. Dignan, you are asking for 21 a --
22 MR. DIGNAN: Clarification of the finding. ,i 23 JUDGE SMITH: -- clarification of the scope of the 24 contention, and your reason for doing it so late is? ]
25 MR. DIGNAN: Because I was just handed this and Heritage Reporting Corporation C' (202) 628-4888 4
22181
'~ 'N 1 told for the first time -- well, they as much as admit they
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2 thought this went up last night to try to stop the low-power 3 license.
4 And what I would like from this Board is a 5 clarification that this Board had no intention by any ruling 6 it made to take an onsite issue in, in the context of the 7 January decision, because certainly that was my :
. 8 understanding of it.
9 And you will recall I argued strenuously to you, j 10 as a matter of fact, that this METPAC model should not be at 11 issue before you because it was issues, if it was 12 fundamental to the METPAC model, that should have been 13 raised way back when.
/~x 14 In other words, the model was bad if it didn't 15 have it. But you in your ruling said the flaw was 16 discovered in the exercise. It was in the context of an
. 17 exercise contention, and this is now being twisted to say to 1
18 the Commission that the Board has taken before it an onsite 19 contention.
20 And while I realize it's a total matter of 21 discretion, in fairness, I would like it declared on the
. 22 record that was not the Board's intention, and I intend to 23 bring that to the attention of the Commission. Ultimately 24 the Commission will have to rule legally, I agree.
25 Dut what I don't need up there with this license h Heritage Reporting Corporation
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22182 1 before the Court of Appeals and before the Commission is 2 some doubt in the Commission's mind that this Board thought 3 it was bringing an onsite power contention before it. And 4 that's the way I invite you to read the document also. The 5 way this thing is being argued to them is that that is what 6 was done.
7 JUDGE SMITH: We will have to review our rulings
, 8 and see what help can be given both parties. Certainly my 9 memory of contentions in both the SPMC and the exercise 10 contention was that we were always aware that we were the 11 offsite board. And we repeatedly turned down contentions 12 which would go onsite.
13 The area where difficulty arises is that we do not 14 believe there could be a void; there could be an area where 15 neither Board had onsite or offsite jurisdiction, and that 16 sooner or later there had to be an interface, or a place 17 where they meet and perhaps span the gap. There is no 18 question about that, but I will have to go back and read the 19 order.
20 MR. TRAFICONTE: I just want to take exception to )
21 the characterization that we are twisting anything.
22 As I indicated, I believe this motion will speak .
23 for itself. We are not intending one way or the other to l I
24 characterize the intent of this Board when it admitted MAG l
)
25 Exercise Contention 19.
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,r ~'3 1 I think the document is quite clear. I think the
/ 2 Board's ruling was quite clear that it was admitting an 3 offsite aspect of the onsite Seabrook radiological emergency 4 plan. That's what the Board admitted, and that's what we i 5 say you admitted. i 6 JUDGE SMITH: Quite clearly, the Board never 7 intended, without any further review of the language that we
, 8 used, just going from what our intent'is and our memory of 9 our intent, we never intended to admit into evidence any 10 issue which would raise the quality of the evaluation of 11 plant status, or the quality of anything relating to the 12 quality, the accuracy of the correct protective action
'13 recommendation. It was the communication of it.
/' \ 14 Now for the life of me, I can't remember how the 15 METPAC model got into it. It's just that some place there 16 had to be a beginning.
17 Now it may very well be that we will receive 18 evidence that arguably it could go to the onsite activities, 19 but solely for the purpose of what happened offsite and the 20 offsite aspect of it. But there was no aspect of what we 21 intended to bring into evidence which would raise the issue 22 of the quality, the timeliness or anything else as to the 23 onsite identification of emergency action, levels, plant 1 24 status, assessment of meteorology or anything else arriving 25 to the formulation of the onsite determination o$ what the
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22184 1 protective action should be. If we admitted language to the 2 contrary to that, then our language was unartfully drafted.
3 But before I go any further, I will just have to 4 go back and read it. But we knew we did not have 5 jurisdiction over that. We knew we were the offsite -
6 emergency planning board.
7 If we had thought that was onsite, we would have
, 8 gone to the Commission. If we felt that was necessary to 9 resolve our issues to go on a purely onsite or even 10 substantially mixed onsite/offsite, we would have had to 11 seek leave for additional jurisdiction. But I don't want to 12 discuss it any more' until I have read the language that we 13 used.
14 MR. DIGNAN: Well, Your Honor, I hate to do this,
{
15 because the Applicant's usual thing is let's keep going. Is 16 there any chanco the Board would do it? Understand the
, 17 context I am in here.
18 The United States Court of Appeals for the 19 District of Columbia Circuit has pending before it the last 20 gasp effort to stop the low-power license. This has been
~
21 filed with the Commission, with a request that the 22 Commission now enter a housekeeping stay to give me time to .
23 respond to it, which is part of the tactic, too.
24 If the Board is willing to, I am prepared to 25 suspend the hearings now and let the Board take a look at
( Heritage Reporting Corporation (202) G28-4888
22185 I f'N 1 the decisions and so forth now and.tell me what I've got or t )
2 what I haven't got here, because this is terribly important 3 to my client.- I know we are losing hearing time. But I'm )
in a context where I've got to crank that response probably l 4 i i
~
I 5 tonight for faxing the first thing in the morning to the 6 Commission.
7 JUDGE SMITH: Well, I appreciate that, Mr. Dignan, .
8 and, you know, we made a count of the number of issues and 9 subissues that the Board has considered and received or 10 rejected so far since I have been the Chairman of the Board.
11 And it's not the earlier issues on the SPMC. There are 12 about 750.
13 MR. DIGNAN: I believe that, Your Honor.
14 JUDGE SMITH: Yes, really. I mean discrete
(
( 15 issues, about 750 of them.
16' And so I just cannot pull out of my pocket what 17 you need for your purposes, but I do believe you are 18 entitled to a clarification.
19 MR. DIGNAN: Your Honor, to the extent the 20 contention has been reproduced as Exhibit 1 to the motion
~
21 that was at issue, there is a typo in it, but other than
.- 22 'that, it's right.
23 JUDGE SMITH: It's the ruling that --
24 MR. DIGNAN: And I've got that with me. I've got 25 the decision in which you made the ruling, if that would
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22186 l -
1 assist the Board.
k' 2' JUDGE SMITH: We probably have it, but it might be 3 helpful. I know that I have it, we probably have it, but if 4 you have extra copies.
5 MR. DIGNAN: It's a December 15th decision. I have 6 a copy of it here.
7 JUDGE SMITH: Yes, I have that right here.
, 8 MR. TRAFICONTE: Let me just note that the Board 9 can do whatever it wants to in the way of further argument 10 today on this. I am prepared to cross-examine Mr. Donovan.
11 I do appreciate that Mr. Dignan received this perhaps at the 12 eleventh, if not the twelfth, hour.
13 I just want to note that the attached Exhibit 1 to
( 14 15 our motion, which contains Exercise Contention 19, I failed to strike Basis C which concerned the state of --
16 MR. DIGNAN: That wasn't the typo I was referring 17 to, John.
18 MR. TRAFICONTE: That is not?
19 MR. DIGNAN: I agree with that. But what it was 20 is it's one thing that is confusing about it. It says --
~
21 MR. TRAFICONTE: Oh, yes.
22 MR. DIGNAN: -- in A it says," Described in detail ,
23 in MAG EX-19", which you meant was 11.
24 MR. TRAFICONTE: You are right.
25 MR. DIGNAN: Yes.
( Heritage Reporting Corporation (202) 628-4888 3
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22187 i
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1 MR. TRAFICONTE: But in any event, what should
\ / have occurred here is that we should have struck on the 2
3 second page of the exhibit all of Paragraph C which the 4 Board did not admit.
5 I believe the Board admitted for litigation the 6 contention supported by Bases Statements A, B and D. I'm 7 completely at the convenience of the Board. If you want to
, 8 take a break and read the motion.
9 JUDGE SMITH: I think fairness calls for that, Mr.
10 Traficonte.
i 11 I might say that I'm sitting here very much 12 surprised that anybody interpreted anything that we did in 13 the light of what I understand the purpose of your motion n
I have my own intellectual
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14 is. And I'm surprised.
15 curiosity as how you arrived at that point.
16 MR. TRAFICONTE: Let me'say, perhaps it's best if 17 we do break at least to give Your Honors an opportunity to 18 read this motion.
19 As I say, and I want to reiterete this, this l
20 motion states that this Board did not and does not have
~
21 jurisdiction over the issuance of a low-power license.
. 22 JUDGE SMITH: So if we did admit it, it would be 1
l 23 pointless, because we could never ever on our own or even by 24 agreement of the parties extend our jurisdiction beyond i
25 matters that --
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22188 1 MR. TRAFICONTE: Perhaps we ought to break and 2 give the Board an opportunity to read this.
3 The short answer is that there is an issue, which 4 we believe we have identified, which runs to both the 5 issuance of a full-power license and a low power license. -
6 It is an offsite issue. It was appropriately brought to the 7 offsite board. It was appropriately admitted as an exercise
. 8 contention. And I believe that the law is quite clear that 9 the offsite aspect of the onsite plan, which is before this 10 Board, in addition to being material to the full-power 11 license, is material to the low power license. That's how 12 we have come to the present posture. i 13 But I'm at the convenience of the Board, 14 JUDGE SMITH: Let's break.
15 MR. TRAFICONTE: Sure.
16 (Whereupon, a recess was taken.)
. 17 18 19 20 21 22 .
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22189 1 JUDGE SMITH: I think the Board is ready.
t,7^'S!
~/ 2 Actually in this case, let me make it clear, I'm 3 not speaking for the Board in everything I say. I'm 4 speaking for the Board as it was constituted when the
- determination was made to accept these contentions.
5 6 And in so doing I am very much mindful of the fact 7 that we discussed privileges many timee with respect to
. 8 attorney / client and deliberative process. And one of the 9 privileges that is probably the most invaluable of all is 10 the judicial process privilege and that is how judges arrive 11 at their decisions.
12 And I'm loath to discuss these matters and yet I 13 think a very substantial injustice can be realized if I l
\
[Nh 14 don't discuss my memory of events and how the Board arrived N_/
15 at the printed language which is here. Let us probe 16 somewhat just how we arrived at what the printed language 17 ought to be what you go by, but there has been an injustice.
18 I want to review in my fading memory just how we 19 arrived at today's situation. One, you may all know better 20 than I do what the circumstances were when the two Licensing 21 Boards were created in this case. Mr. Dignan, and I believe 22 others, have reminded me now that it arose in light of the 23 distinction between low power and full-power requirements.
24 I mean, the requirements that a licensee or an applicant for 25 a license must meet before they are issued a low-power
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22190 1 versus a full-power.
2 In this instance, offsite communication, sirens, 3 which was purely an offsite consideration, was at the time .
4 two Boards were created, a low-power consideration.
5 So that jurisdiction, even though it was given to 6 offsite, was given to the onsite Board. And I raise that to 7 point out that the jurisdictional split was not functionally
, 8 what had to be done onsite or what had to be done offsite.
9 The jurisdictional split was the requirements for low-power 10 license vis-a-vis the requirements for full-power license.
11 And the term Onsite and Offsite Licensing Boards merely 12 became a convenient designation, because most of the 13 requirements for a low-power licensing were indeed physically and institutionally onsite requirements.
( 14 15 In looking at what is onsite and offsite after 16 that. When contentions came before us, we did not look at
, 17 contentions with the issue in mind as to whether they fell 18 into the regulatory requirement for low power or full power.
19 By this time we were pretty comfortable with the 20 fact that anything which was purely onsite to be performed 21 by licensee personnel on the site would fall into the 22 category of the other Board, the Onsite Board or the so- .
23 called Low-power Board.
24 And we thought we had pretty well identified the 25 issue of sirens and offsite notification as being the sole Heritage Reporting Corporation
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22191 f'^s 1 exception. So the matter wasn't really very much in mind as i i l' - 2 we looked at contentions.
3 In your motion to the Commission you suggest that 4 there is a concurrent jurisdiction, I think what you're I
5 saying. That there was concurrent jurisdiction between the 6 Onsite Board and the Offsite Board. And that we both had 7 jurisdiction over the issue that you now avow is the issue
, 8 which must be resolved before a low-power license can be 9 issued. I disagree with you on that.
10 It has never been our understanding that there 11 would ever be concurrent jurisdiction. That jurisdiction 12 would bump up to each other, but not that there would be 13 concurrent jurisdiction because we've always understood that
,~ s
( \ 14 we could not and should not take jurisdiction over the so-L) 15 called low power issues.
16 And that split jurisdiction or concurrent
, 17 jurisdiction is generally not favored in the judicial 18 system. And certainly it is not favored in NRC practice; an 19 aspect of the split jurisdiction that we have always been 20 sensitive to. We have never consciously taken jurisdiction 21 over matters that we felt arguably would have been the
, 22 Onsite Board.
23 And as a matter of practice where I was confused l
24 about it, I would consult with Judge Wolfe and consult with 25 Judge Cotter who is the Chairman of the Atomic Safety and
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22192 1 Licensing Board Panel, Chief Judge of our Panel who has the 2 regulatory authority to assign Boards.
3 Furthermore, I might point out that when the 4 Commission issued its order, which I don't have before me, 5 saying that offsite notification testing would no longer be .
6 a low-power requirement, but rather a full power 7 requirement, the Commission was very sensitive to the fact
. 8 that there were Licensing Boards with differing 9 jurisdictions and that that order could have an impact upon 10 who had jurisdiction. And the Commission just didn't leave 11 it the chance. The Commission itself made it clear that it 12 did not favor and could not rationally favor confusion on 13 the matter. And could not favor a concept of concurrent 14 jurisdiction.
15 So the Commission directed, I believe, the Chief 16 Judge in consultation with the Boards to make a
, 17 determination as to where jurisdiction lie. And if you 18 recall, Judge Cotter did issue a memorandum I think 19 clarifying where we had jurisdiction.
20 Earlier in the game the issue came up in a This was 21 telephone conversation about the METPAC Code.
22 early in discovery. And it was called for and I believe Ms. ,
23 Selleck -- I forget who was representing the Intervenor, but 24 I know that.Mr. Traficonte was representing the Attorney 25 General -- but I think Ms. Selleck was representing the Heritage Reporting Corporation
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. (~' 1 .Intervenor and came up'with a demand for the METPAC Code.
b' 2 Ms. Selleck was representing.the Applicant.
- 3. And we directed that it should be provided. I'm 4 sure it was transcribed. We.went into the jurisdictional 15 aspects. But overriding.that consideration was the basic 6 thought.
7 We knew we had jurisdiction on how well the New
, 8 Hampshire Yankee ORO acted in the SPMC in acting for the
-9 governor. And the issue that we saw coming up, an issue 10 that sort of grabbed-my. mind, was did the New Hampshire 11 . Yankee ORO drop the ball from the time it received accurate 12 protective action information from onsite. We felt that
'13 would have been an issue all the way through.
14 And indeed, when we got to exercise contention 19 15 .we had just thoroughly considered exercise contention 11 16 which was very much on that point: to what extent did ORO
., 17 acting as the governor mangle the protective action 18 informat ion recommendations received from onsite.
19 So we always regarded the NHY ORO in this context'
- 20 as being strictly an offsite consideration, an offsite 21 organization.
, 22 MR. DIGNAN: Your Honor, I don't normally ever 23: interrupt a judge when he's ruling, but you have mentioned a 24 ,gpecific. transcript. I've got the transcript here.
25 JUDGE SMITH: I have no idea what we said.
If l
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22194 1 MR. DIGNAN: What I'm saying is, it might assist
~
2 you in analyzing this if I read you a portion of it.
3 JUDGE SMITH: All right.
4 MR. DIGNAN: You are correct in your recollection !
5 of Ms. Selleck representing the Applicant.
6 JUDGE SMITH: Before you tell me, I want to also f 7 bear in mind that our attitude at that time was, we want ;
i
, 8 once.and for all this hearing to go ahead and we want very i 9 liberal discovery on this issue.
10 MR. DIGNAN: I understand.
11 And Mr. Fierce, in fact --
l 12 MR. TRAFICONTE: Could we just have the date, I'm 13 sorry.
14 MR. DIGNAN: -- was representing the Commonwealth.
15 And the date of the transcript is February 7, 16 1989, and I'm reading commencing at page 15,667. Your Honor 17 made this statement: "That you are seeking the model now, 18 not for the reasons stated in your contention for the basis 19 because they have given you the information which normally 20 would satisfy that, but you are seeking it now to find new,"
21 and you were interrupted by Mr. Fierce who said, "No, I 22 think it's not quite true." , ,
23 Your Honor replied: "True in any respect.
24 Mr. Fierce: "The contention says that the model 25 has fundamental flaws that cause it to fail to take into Heritage Reporting Corporation
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22195 j*~N 1 proper account all known facts as well as existing
\~- 2 uncertainties in the generation of PARS."
3 Judge Smith: "But look,~we are talking now about 4 what'was revealed by the exercise."
5 Mr. Fierce: "We're looking only at the way the 6 exercise data was fed into the model and then treated by.hhe 7 people who were using the model in order to project PARS.
1 8 That is-all we're looking at. In that situation we believe '
9 .that PARS were generated and passed to offsite authorities 10 which were inadequate."
11 Judge Smith: "I understood the contention to be
~
12 limited to a defect in the model revealed by the exercise."
13 Mr. Fierce: "That's right."
14 Judge Smith: "Not other defects that might be in
[' /}
\,_
15 the model that might be discoverable that if Dr. Goble 16 played with it for awhile, but defects revealed by the .
. 17 exercises. The agreement that that is what it was."
18 Mr. Fierce: "That is what are after."
19 JUDGE SMITH: I'm not sure that exchange b.tves 20 you, however. Because what aspect of the exercise was being 21 focused on? And that's another matter that came up later 22 on.
23 In our view we have always regarded the issue of 1
l 24 the METPAC model as being made available. And the product l 25 of it,-I should emphasize, as being made available, so that Heritage Reporting Corporation Ot (202) 628-4888
.._______2___ _ _ _ _ _ _ _ _ _ _ mm
l 22196 l
1 the correct onsite decisions, the correct unchallenged .
2 onsite decisions, would be available for comparison with ]
3 offsite actions. That is all. That is all we had in mind. )
4 We had no intention of litigating anything about 5 plant status or the correct interpretation of meteorological -
6 data or anything else.
7 Furthermore, at that time I didn't even know what
, 8 the METPAC model was during that conference other than it ,
9 had something to do with the generation of PARS. ')
1 10 Now as we begin, I'm going from the perspective j 11 that the Board had as it began to analyze the Attorney 12 General's exercise 19. And we focused on the New Hampshire 13 Yankee offsite response organization.
14 If I had to do it over again, I don't believe that
{'
15 we correctly decided this because, again, we said there 16 would be no void in jurisdiction; that the arriving at the 17 conclusion onsite was clearly an onsite matter; arriving at 18 the appropriate protective action information onsite based 19 upon plant status and everything else was clearly onsite; 20 that we were testing the capacity to communicate.
21 And then with respect to the New Hampshire Yankee 22 ORO, the capacity to utilize the information offsite. .
23 Communication, we believed, spanned the plant boundary to 24 offsite.
25 So reading MAG Exercise 19 and looking at the
( Heritage Reporting Corporation (202) 628-4888 .
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. /~'(- 1 background and the reasons why we gave it, rightly or
.. 'I / l N/ 2 wrongly, we viewed that as something that did not address !
s 3 arriving at the correct protective action recommendation 4 onsite, but addressed how was that accurately communicated.
5 Again, the second part of the contention'
And we did not focus 6 emphasizes the offsite aspect of it.
7 on any onsite protective action recommendation aspects of
,- 8 it.
9 In Basis A, again when I read New Hampshire 10 Yankee's ORO, I read that as how New Hampshire Yankee's ORO 11 utilized information and decisions which were made onsite-12 communicated. And in my mind at that time it was, how well 13 they acted for the State of Massachusetts and others I [\ 14 offsite.
15 I want to point out again we were brought into 16 reflection on Basis A of Exercise 19. We were brought into 17- the context of MAG Exercise Contention 11, which was purely 18 how well did the ORO function for the governor, which is 19 purely offsite.
20 But so it goes all the way down until we get to 21 Basis D.
22 (The Board confers.)
23 24 25 Heritage Reporting Corporation (202) 628-4888 L%[)}
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l 22198 1 JUDGE SMITH: (Continued) Judge McCollom pointed ,
l
. (" 2 out that Basis B talks about what the State of New Hampshire 3 did, and not the licensee's onsite personnel.
4 So we get down to D and here is where I believe 5 the Board was flat out wrong. We should not have accepted .
6 D. That shows that the model has fundamental flaws. As Mr.
7 Dignan pointed out, that was not the purpose. But even so,
, 8 we accepted what seems to be an onsite P?R decisionmaking 9 procecs predicated upon the METPAC model, and that it did 10 have aspects of the method of communicating offsite the 11 METPAC-generated information. But there are aspects of D 12 that should not have been accepted.
13 And the reason we accepted it, the reason that I 14 accepted it -- and I will take responsibility for that -- is 15 that during this process by the time I got to D the focus in 16 my mind was no longer on onsite versus offsite. It was on
, 17 ALAB-903. And if you recall, that's what came up right 18 during the time that we were juggling these contentions. And ;
19 they came along and we had to review them again from the 20 perspective of ALAB-903. And that is, as we all are 21 familiar with: is it an essential element? Does it reveal a 22 defect in the essential element of the plan? And if so, is ,
23 it redressable or readily correctable?
24 And as I recall our ruling on it, we emphastzed j
- l 25 the ALAB-903 aspects of it and didn't discuss at all -- in !
J l
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I 22199 )
'~N fact at no place in Basis D did we discuss whether we I f s 1
t >
k 2 believed it to be action by licensee onsite personnel or an l 1
3 onsite activity. We discussed it, if I can find it.
4 (Pause to search for document. )
5 JUDGE SMITH: Here's what we said about alluding 6 to D.
7 "The issue of the METPAC computer model could not
, 8 have been raised earlier in that it alleges fundamental l 9 flaws in the model which were revealed by the exercise."
10 And in commenting on ALAB-903, the plan states 11 that the METPAC issue is relatively minor and readily 12 correctable. While it is quite possibly a problem, if one !
13 exists and is readily correctable, it is not at all evident I/~~~i 14 that it is a minor consideration, and both elements are
\
v
)
15 important. That was the mental lapse.
16 (Pause.)
, 17 JUDGE SMITH: It wasn't a mental lapse. It was a 18 mental incompleteness in that I focused on D solely in 19 analysis of ALAB-903 and not having in mind the distinction 20 between onsite and offsite.
~
21 Now as I said, I question whether you really
. 22 needed our views on this, because there is a certain thing 23 about jurisdiction. That is, you are infallible. I mean, 24 if you make a jurisdictional error exceeding your 25 jurisdiction, it doesn't count. You just don't have it.
I
/T Heritage Reporting Corporation
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- 1 In Commission practice, we absolutely do not have b
2 any jurisdiction one iota, as the Commissioners freciuently 3 remind the. licensing boards, to receive or decide any issue 4 not clearly within our jurisdiction.
5 The Commission, when it sent back its revision to -
6 the low power requirements -- I'm repeating -- specifically 7 was aware of the difference in jurisdiction and directed the
, 8 judges of the licensing personnel to sort out jurisdiction 9 and that it was clear to me that we were not to have any 10 jurisdiction which impacted upon low power licensing, and 11 that has been my understanding of our jurisdiction from the 12 very day that I joined this Board to this very moment.
13 Nothing has ever happened to change that.
14 To any extent that we have admitted contentions
(
25 which exceed that jurisdiction, it was an error, and it was 16 an error -- it doesn't matter if it was an error or not, we
. 17 don't have jurisdiction to do it.
18 MR. DIGNAN: Your Honor, in light of that remark 19 then, I would respectfully move the Board to reconsider its 20 decision on Basis D of EX-19.
~
21 JUDGE SMITH: Exactly right.
22 MR. TRAFICONTE: Could I be heard? ,
23 JUDGE SMITH: Judge McCollom just raised that with 24 me. He said if your reasoning is correct, then we shouldn't 25 have that contention in there. I mean, it doesn't matter.
Heritage Reporting Corporation 1.( (202) 628-4888 l l
i 22201 f '~S 1 It can be later or any time. We can't even administer the h
s/ 2 cath to the witness to testify on it. We simply don't have 3 jurisdiction.
4 If you are right, then we don't have jurisdiction.
5 Your argument is almost self-defeating because the more 6 force you have to it, the more you reinforce the idea that 7- we don't have jurisdiction.
. 8 If that issue that you put out here, this one, 9 adequate methods, systems and equipment for assessing and 10 monitoring actual or potential offsite consequences of a 11 radiological emergency condition are in use on site, if you 12 view that to be the case, and with good reason you do, we 13 don't have jurisdiction and that basis has to be out.
[~')
I 14 The fundamental flaw of METPAC, as I alluded to 15 another aspect of it, could be deemed to be the 16 communication of the METPAC product and the offsite
, 17 implementation, but not the fundamental flaw of the METPAC 18 methodology or any onsite action.
19 Where is that Basis D?
20 (Pause to search for document. )
21 Oh, there was the aspect of passed on copies of 22 METPAC printouts which I guess arguably could have been the 23 mechanical means of communicating a decision made onsite.
24 But in my view, all of that entire basis should be out.
25 MR. TRAFICONTE: Your Honor, before you
(N Heritage Reporting Corporation l t
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22202 1 rule -- 1 l
- 2 MR. DIGNAN: Can I view that as a ruling of the 3 Board? ,
4 JUDGE SMITH: Well, wait a minute. Let's hear 5 what he says.
6 MR. TRAFICONTE: Could we be heard on the motion 7 and the comments to this point?
, 8 JUDGE SMITH: Yes, right.
9 MR. TRAFICONTE: I want to make some preliminary 10 comments about jurisdiction and the motion that we filed 11 this morning with the Commission.
12 First of all, it is our view, as we say in the 13 motion very clearly, that this Board does not have and did 14 not have jurisdiction over the issuance of a low-power 15 license. However, this Board did have and does have 16 jurisdiction over offsite issues that arise from the June
, 17 1988 exercise. That was the Board's understanding of its 18 jurisdiction at the time we filed contentions, and I 19 believe --
20 JUDGE SMITH: Of all exercise contentions? ;
21 MR. TRAFICONTE: That the Board had jurisdiction 22 over the offsite aspects. .
23 JUDGE SMITH: Offsite aspects.
24 MR. TRAFICONTE: Offaite aspects of all emergency 25 plans being tested in the June 1988 exercise. So that means l
Heritage Reporting Corporation
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h 22203
/~% s 1 it had jurisdiction over the offsite aspects of the onsite
.( )
^' 2' Seabrook Station radiological emergency response plan, the j i
3 SPMC as it was exercised, and the NHRERP for New Hampshire 4 as it was exercised.
1 5 Some preliminary comments: I think that that was
]
6 correct. I think that was your jurisdiction. I think it is 7 your jurisdiction, offsite. l i
, 8 JUDGE SMITH: You are using the word "offsite".
9 MR. TRAFICONTE: Offsite.
10 JUDGE SMITH: You are not using the word --
11 MR. TRAFICONTE: Low-power.
12 JUDGE SMITH: --
" full power" or " low power".
13 offsite.
[ h 14 MR. TRAFICONTE: I believe you had jurisdiction 15 over-the offsite aspects and that you had jurisdiction over 16 and have jurisdiction over the full-power license, not over 17 the low-power license.
18 JUDGE SMITH: That's right.
19 MR. TRAFICONTE: I don't believe you have 20 jurisdiction over the low-power license.
~
21 JUDGE SMITH: What do you think about any aspect 22 of jurisdiction over low power which could have been joint 23 jurisdiction with the low-power board?
24 MR. TRAFICONTE: I believe that in the recent 25 rulemaking, the copy of which I have made available -- and Heritage Reporting Corporation
.[]j t, (202) 628-4888
s 22204 1 I'm talking about the amendments to 50.47 (D) that were set
~
2 forth in the Federal Register at 53 Federal Register 36955 3 to 36960.
4 I believe the Commission made clear that before 5 they will issue a low-power license there are certain .
6 offsite aspects of onsite licensee plans that must be 7 reviewed and reasonable assurance found. And they enumerate
. 8 in this rulemaking at what is now 50.47 (D (5), they restate 9 what is essentially Planning Standard B-9, the requirement 10 that adequate methods, systems and equipment for assessing 11 and monitoring actual or potential offsite consequences of a 12 radiological emergency condition are in use onsite. The 13 Commission defines that requirement as an offsite aspect of 14 an onsite plan.
{
15 In that definition, in our view, this Board has 16 jurisdiction, or had and has jurisdiction over --
, 17 JUDGE SMITH: Well, explain that. Would you 18 explain that? Just restate your most recent statement..
19 MR. TRAFICONTE: Yes. Restate my most recent 20 statement?
21 JUDGE SMITH: Yes.
22 MR. TRAFICONTE: Yes. That in setting forth this ,
23 requirement, which is now 50. 47 (D) (5) , that there is an l 24 offsite aspect and it will not be --
25 JUDGE SMITH: What is that offsite aspect?
, Heritage Reporting Corporation ,
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22205 t'"N 1 MR. TRAFICONTE: The offsite aspect of the onsite
- 2 plan is the onsite plan's capacity to adequately assess the 3 actual or potential offsite consequences of a release.
4 JUDGE SMITH: No, that's onsite. That is onsite.
5 MR. TRAFICONTE: The Commission defines right in i
. i 6 the~rulemaking, in fact in the new rule the Commission 1
7 defines these standards set forth there as follows, and I'm
.,_ 8 reading from the section that precedes the numbered 9 paragraphs at 36960 of the Federal Register.
4 10 "The NRC will base this finding on its assessment
.11 of the Applicants' onsite emergency plans against the 12 pertinent standards in Paragraph (1B) of this section and 13 Appendix-E. Review of Applicants emergency plans will 14 include the following standards with offsite aspects."
15 The onsite plan will be reviewed in certain 16 particulars with regard to its offsite aspects.
,, 17 JUDGE SMITH: But there are two functions of 18 nuclear power reactor equipment. One is to generate i
19 electricity and one is to avoid offsite consequences. I i 20 guess the OSHA might have some other consideration, too.
21 But as far as we have jurisdiction, there are two things --
22 generating electricity and everything else - is to avoid
.23 offsite consequences.
l 24 MR. TRAFICONTE: Well, specifically what I --
25 JUDGE SMITH: That at least is my view as I read Heritage Reporting Corporation O (202) 628-4888 1
22206 i 1
- 1 it. But I would like to have you address that.
) -
k 2 MR. TRAFICONTE: Yes.
3 JUDGE SMITH: That's why I am asking.
~
l 14 MR. TRAFICONTE: Well, let me come at it this way. 1 5 I believe that this, what is now (D) (5) -- and if l 6 the Board would direct its attention, it's identical 7 essentially to (B) (9) , it is a requirement of the onsite
, 8 plan that this offsite aspect be adequate. That's a 9 requirement for a low-power license. It is also material 10 and relevant to the issuance of a full-power license.
11 That's to say that when we filed the contention, 12 EX-19, which clearly sets forth in the contention statement 13 that it was a challenge to the onsite Seabrook Station plan 14 and their capacity to use the data effectively in assessing
{
15 offsite consequences, we made a challenge to (B) (9) . And by 16 indirection we made a challenge to the new (D) (5) .
, 17 We claimed that there was an offsite aspect of the 18 onsite plan that was not adequate. That issue runs to the 19 full power license. It's an offsite issue and it runs to 20 the full-power license. So this Board has jurisdiction over 21 it. That's why the Board took the jurisdiction and I think 22 it was perfectly appropriate. ,
23 By this rulemaking, what the Commission is stating 24 is that an issue that is material and relevant to the full-25 power license is at the same time material and relevant to Heritage Reporting Corporation
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22207 l f- 1 the low-power license. That doesn't impact on this Board's j l I N_ / 2 jurisdiction at all.
3 If the Board appropriately had jurisdiction over I b
4 the contention EX-19 because it ran to an offsite issue and ;
. 5 it ran to full power, the fact that in addition to that it 6 now, according to the Commission, also is material and 7 relevant to a low power license, doesn't mean this Board
, 8 doesn't have jurisdiction over it. It means that the Board 9 acted appropriately, took jurisdiction. We've had 10 discovery. We've filed testimony. We've taken depositions.
11 We have in fact, and I think the record is quite 12 clear, we have in fact explored failures in the onsite plan, 13 failures in their accident assessment capabilities vis-a-vis
/T 14 METPAC; precisely what the contention says. We have
Y 15 explored it. The NRC Staff has filed testimony in the case 16 on it, as have we, as have the Applicants. It's an 17 appropriate issue. It runs to the full power license.
18 It so happens that in addition to that, the 19 precisely same issue, the capacity or adequacy of the 20 accident assessment capability of the onsite plan, has been 21 declared by the Commission to be material to a low power 22 license. That doesn't impact on this Board's jurisdiction.
23 By saying that it hasn't taken jurisdiction of the full-24 power issue away from this Board, it has just identified an 25 issue over which you have jurisdiction for a full-power
/~N Heritage Reporting Corporation 7
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22208 1 license as material to the issuance of a low-power license 2 in addition.
3 So I am at a complete loss as to why the Board at 4 this juncture, when presented by Mr. Dignan with the 5 statement that in some fashion the issue that's been .
6 admitted and is being litigated is now running to the low-7 power license. That's a fact. Yes, I believe the issue
< 8 'does, and I acknowledge that it was only very lately 9 discovered by me that it does run to the low-power license.
10 I think that's fact.
11 But that is not in any way, shape or form a 12 statement or a grounds for finding that it is no longer an 13 issue material to a full-power license. And I think that's 14 the mistake that you are being asked essentially,to make, 15 and that you are on the brink of making.
16 You had jurisdiction. You still do. You 17 appropriately took jurisdiction. The issue is before you.
18 And just because it is clear that it is also material to a 19 low-power license you want to shy away from your 20 jurisdiction, and I don't believe you should do that.
21 Let me make one other comment. If the Board were 22 inclined to rule on a motion, an oral motion at this .
23 juncture in this posture today on the record, and grant Mr.
24 Dignan's motion to dismiss Basis D of Exercise Contention 25 19, we would request the following relief immediately.
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1 We would request that the hearings be suspended
_:A~-g-'<) :
2 today. We would request that the Board immediately certify 3 the question to the Appeal Board, and we be given the 4 opportunity, in the event that the Board was not inclined to 5 certify the question, that we be given an opportunity to 6 telephonically contact the Appeal Board so that review could 7 lie.
, 8 Because, frankly, if the Board is inclined to 9 grant Mr. Dignan's motion orally as it's been' argued before 10 you, and these are fairly complex jurisdictional matters, I 11 am now going to sound like Mr. Dignan did when he first came 12 in. .This is before the D.C. Circuit. We do have a very 13 short fuse on the low power license. We have moved to the t' 14 Commission seeking a housekeeping stay. And the Board's
.s 15 action would have, in my view, it would, first of all, be an 16 error, and it would also have potentially dramatic 17 consequences on the issuance of that license.
18 And we would plead with the Board to give us the 19 opportunity to have this jurisdictional matter put before 20 the Appeal Board before it could become effective, because I
~
21 am convinced that there may be an awkwardness in this new 22 regulation. There may be an awkwardness here. But the fact l
23 of the matter is the contention we submitted, and that was 24 admitted by the Board, runs to a full power license; 25 It was appropriately pleaded; you appropriately Heritage Reporting Corporation
[ (202) 628-4888 I(
22210 1 allowed it in over objections by Staff and objections by 2 Applicant. We've had full discovery -- well, we've had 3 discovery. We've filed testimony. The issue is an open 4 issue, and it runs to the 5 full power license.
6 And I am at a loss to understand how now, with Mr. !
7 Dignan indicating that it may run to the low-power license,
, 8 you are prepared to back off and say, well, we 9 inappropriately took jurisdiction. You appropriately took 10 jurisdiction.
11 MR. DIGNAN: Your Honor, if I may reply briefly. j The reason I am urging this on you is because Mr. !
12 13 Traficonte very cleverly now says, oh, this is just an 14 offsite aspect and it has nothing to do with low power. You 15 have jurisdiction. But if you read his motion to the 16 Commission, the sine qua non of the motion, the entire
. 17 gravamen of the motion is on the top of page 4.
18 "To date, testimony has been filed by the Mass.
19 AG. The Applicants and the NRC Staff specifically 20 addressing the adequacy of the accident assessment, dose
~
21 projection methodology in use onsite as part of the 22 Applicants' onsite plan. No licensing Board decision on ,
23 this contention has been reached."
24 The whole basis of his motion is that pending
' I 25 before you is an issue that goes to onsite and you haven't l
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'~', 1 reached a decision, and therefore the low-power license is t
)
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2 blocked. That's the whole thrust of his contention and 3 there is an easy solution, assuming Your Honor adheres to 4 the views you expressed earlier as to the possibility that 5 it was not analyzed far enough. And that is, on 6 reconsideration dismiss this contention out of the cffsite 7 case, that Basis D.
, 8 As for the Commission supposedly putting it in, 9 which is the other thrust of the argument, I would remind 10 you tnat wl'at the Commission is saying in this entire 11 regulation is that the question of the low power license is 12 not to be decided on the basis of any exercise whatsoever.
13 As it says in the regulation, the consideration for low-
) 14 power license la an examination of the plan, not the L) 15 exercise.
16 So, therefore, it's a clever piece of
, 17 speechifying, I agree, but the fact of the matter is the 18 drive at the Commission is being made on the basis that 19 there is in the hands of this Board a low power issue and 20 the Board hasn't decided it.
21 Because if this is an admission that it is not a 22 low power issue, whether the Board doesn't need to decide 23 it, his motion disappears and he knows it and I know it, and 24 he's not making that concession.
25 MR. TRAFICONTE: Your Honor, it's not a matter of Heritage Reporting Corporation
["'h) v (202) 628-4888
22212 1 a concession. I am stating as clearly as I can the fact i
$ l
. 2 that we have an issue that is a full-power issue. It was 3 admitted by the Board pursuant to its full power offsite 4 jurisdiction.
5 It turns out that the same -- -
6 JUDGE SMITH: No, it wasn't.
7 MR. DIGNAN: No, it wasn't.
8 JUDGE SMITH: I mean, it just wasn't. And the 9 more I read this regulation of September 1988, the more I am 10 convinced that the Commission never intended for full power ,
1 11 the issue of accident assessing and monitoring. It just 12 never intended, and I just don't see it here.
13 MR. TRAFICONTE: But, Your Honor, if you could 14 direct your attention to --
15 JUDGE SMITH: It's an onsite issue.
16 MR. DIGNAN: It's an "offsite aspect", and that's
, 17 the key word, " aspect". And what Mr. Traficonte is trying 18 to do is read that word differently than I at least read it 19 in the English language. This is reciting the " aspects" 20 that will be resolved before low power.
~
21 JUDGE SMITH: Yes. ,
1 22 MR. DIGNAN: And that's all that that regulation ,
l 23 se;ys. )
24 MR. TRAFICONTE: Your Honor. l 4
25 MR. DIGNAN: And by definition when low power l [' Heritage Reporting Corporation 1 (202) 628-4888 l
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-[ 1 issues,.that aspect is. resolved. And this, with all due
(
2 respect-and not to reargue, this was the argument,.perhaps 3 inartfully, that I was trying to make to you back when this 4 was first decided and which was rejected. ,
- 5 MR. TRAFICONTE: Appropriately. rejected.
6- Your Honor, could I direct your attention --
7 JUDGE MCCOLLOM: Can we just have a minute here?
. 8 (The Board confers.).
9 10 11 12
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i . 17 18 19 20 l'
21
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l 22214 1 JUDGE SMITH: You said again this is a low power 2 offsite consideration. Would you explain that again to me?
3 I have always regarded that those people onsite reading 4 their instruments, making their plant status conditions, all 5 that stuff, getting the meteorological data, all the things 6 they do onsite, even though they may get some information 7 from offsite. Maybe they may even as far as do some of the
, 8 onsite things offsite, I don't know.
9 But you say this is a low power offsite l
10 consideration. !
l 11 MR. DIGNAN: No. No. What I said was that I was 12 trying to rebut what Mr. Traficonte was saying about this 13 regulation.
14 The regulation says quite clearly: "This section 15 in Appendix E review of the Applicants' emergency plans."
16 This is the emergency plan review they're talking about
, 17 before they grant a low power license which is based only on 18 the review of plans. They don't worry about the exercise 19 with respect to the low-power license. "Will include the 20 following standards with offsite aspects."
21 And one of the ones he keeps directing your 22 attention to is the number five one which says: " Adequate .
23 methods, systems and equipment for assessing and monitoring {
l 24 actual or potential offsite consequences of a radiological l l
25 emergency condition in use onsite." )
(-
Heritage Reporting Corporation (202) 628-4888 Ol
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, - f' 1 And I view that as something that is done onsite, 2 .the assessment and so forth and so on. They're saying it 3- has an aspect of offsite, the aspect being that what you're li doing-there is assessing whet's going to happen off the 5 site.
E, 6 JUDGE SMITH: Right.
7 MR. DIGNAN: And that's all they're saving.
> 8 JUDGE SMITH: Which is everything.
9 MR. DIGNAN: Exactly.
10' JUDGE SMITH: There is no aspect of emergency 11 planning vi Ach does not somehow have an offsite aspect.
12 MR. DIGNAN: That's correct.
13 JUDGE SMITH: Except for the possibility parts of
/\ 14 it might relate to plant personnel.
15 MR. DIGNAN: That's correct.
16 MR. TRAFICONTE: Except that the Commission has --
. 17 MR. DIGNAN: I guess I made my point clear then.
18 MR. TRAFICONTE: Except that the Commission has 19 expressly identified in this new rule that there are certain 20 offsite aspects of the onsite plan that are material and
~
21 relevant to the issuance of a low-power license, in addition
. 22 to being relevant to the issuance of a full power.
23 JUDGE SMITH: Where do they say that's relevant to 24 the issuance of a full power?
25 MR. TRAFICONTE: I would direct your attention
,(
h/ Heritage Reporting Corporation (202) 628-4888
22216 1 back to the CFR.
2 JUDGE SMITH: They don't say it in the regulation 3 to which you're citing.
4 MR. TRAFICONTE: The regulation that I'm citing 5 from is a regulation setting forth the emergency planning .
6 and preparedness requirements for low power testing.
7 To find out or to reference the emergency planning
, 8 requirements relevant to full-power testing I would just 9 direct the Board's attention to 50.47 (b) which sets forth 10 what the emergency planning requirements are for a full-11 power license. 1 1
12 And specifically, with regard to the discussion we 13 are having today, at B-9 -- and again, I'm talking about
{ 14 15 50.47 -- at B-9 it says: " Adequate methods, systems, and equipment for assessing and monitoring actual or potential 16 offsite consequences of a radiological emergency condition
, 17 are in use."
18 The language is virtually identical, Your Honors, 19 in both --
20 MR. DIGNAN: Your Honor --
21 MR. TRAFICONTE: Mr. Dignan, let me just finish.
22 JUDGE. SMITH: That's a logical fallacy. If a ,
23 state of affairs has to exist before the issuance of a low-24 power license, certainly those must also exist before the 25 issuance of a full power license.
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22217 e's 1 MR. TRAFICONTE: Except that B-9 refers not only l \ n
/ 2 to the onsite plan but also to the State of New Hampshire f
3 and, in this instance, ORO's accident assessment and
~
i 4 monitoring capabilities.
. 5 So B-9 relating to the full power license is 6 broader in scope than D-5 in relating to the offsite aspects 7 of the onsite plant.
, 8 JUDGE SMITH: I simply don't understand or to the 9 extent I understand it, do I agree with your logic.
10 I don't know what is to be gained by arguing with ,
11 us anymore. The Board has pretty well decided that the 12 activities of the personnel at the facility relating to 13 accident assessment and the projection of potential offsite f'N 14 consequences is onsite, and is something that has to be
,x# )
15 done.
16 It has not been a part of our jurisdiction in that
, 17 something had to be done before the issuance of a low-power 18 license.
19 We have taken this proceeding from the very 20 beginning, always when we have done our job correctly, is 1
21 that we start at the plant boundary. And we only get inside 22 the plant boundary when there is a bridge that has to be 23 gapped or a communication.
l 24 We never saw a jurisdictional void. But we never l
}
25 saw concurrent jurisdiction. This is the Commission's j
i r^3 1 Heritage Reporting Corporation (202) 628-4888 G
I
22218 1 problem that we have presented to it. And as long as you're 2' going to~ cite us to the Commission you might as well say 3 that we regret that we have caused this confusion.
4 I just don't believe the probis.a is as complicated 5 as you're making it.
6 MR. TRAFICONTE: Well, it may not be as 7 complicated as I'm making, but I believe the Board is
- 8 committing an error by striking this contention at this 9 point.
10 JUDGE SMITH: Even if you were correct that there 11 were aspects as to which both low power and full power 12 considerations apply, if you were correct, that still does 13 not give us jurisdiction to apply those aspects in the sense
{ 14 15 or within the rubric of the low-power considerations you're arguing.
16 We didn't do what you said we did because we can't
, 17 do what you said we did.
18 19 20 21 ,
22 ,
23 24 25 Heritage Reporting Corporation C. (202) 628-4888 1
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i l
l
g
- T 4 o.
9
.if 22219 jk-ky .1 ' JUDGE SMITH: Fundamentally we didn't.do it
_2 because we can't do it. We are infallible; we never exceed 4; ,
3L our jurisdiction:because we cannot.
'4 MR. TRAFICONTE: Would the Board' entertain the
- f. ,
o '. . 5 following request: that it not' grant the motion to strike i'
6 this basis'and this contention, but instead simply affirm ;
7 its' December 15 Memorandum and Order with regard to the j
, 8- admissibility of this basis and contention to the extent 9 consistent with its jurisdiction. And then certify --
- 10 ' JUDGE SMITH: I don't see any jurisdiction that we 11 have. And I don't think we're going to certify that i 12- question either.
in n '13 MR. TRAFICONTE: Your Honor -- ,
5
- j. .14 - MR. DIGNAN: Your Honer, first of all --
1s_s/ I 1!L MR..TRAFICONTE: -- let me be heard, it is my ;
16' motion for certification.
, ' 17 MR. DIGNAN: No, it's my motion that you are 18' talking and describing inaccurately.
JUDGE SMITH: Off the record.
20 (Discussion off the record. )
- 21 JUDGE SMITH: Now say it again.
o, 22 MR. DIGNAN: Your Honor, my motion is not a motion
'23 to strike a contention. It is a motion for this Board to
.24 reconsider its prior uling admitting the contention and 25 that particular basis of the contention to wit, 19(D) and q l
.1 Y Beritage Reporting Corporation (202) 628-4888 l
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.s
22220 1 ask the Board to reconsider that ruling and vacate it and 2 declare it not admitted.
i 3 It is not a motion to strike, that's my point. {
l 4 MR. TRAFICONTE: Your Honor, again, two points: if {
5 it's going tc be in that form I would request an -
6 opportunity, at least, to file some written submission in l
7 response, l
, 8 Failing that and having the opportunity today to 9 present argument, if the Board is prepared to rule on what I 10 believe is a very thorny, very complicated, and very complex 11 jurisdictional issue I would -- and with the consequences, 12 Your Honors, of potential issuance of a low-power license --
13 JUDGE SMITH: I see no consequences there.
14 If our ruling is being used before the Commission
('
15 and before the Courts, that's their problem. We are making 16 the ruling that the -- I'm sorry, let me let you complete 17 your argument.
18 MR. TRAFICONTE: It was in the form of a request.
19 That, in fact, I believe that the motion we have 20 put before the Commission is substantial legal grounde for a 21 stay. I don't think a low-power license will or should 22 issue because I believe there's an open issue that's ,
23 material and relevant.
24 JUDGE SMITH: Don't tell us; we're the wrong 25 forum.
/ Heritage Reporting Corporation 4 (202) 628-4888
22221 9 1 MR. TRAFICONTE: Well, I'm not so sure you are,
?
~! 2 Your Honor. Mr. Dignan .n reading my motion'has come in 3 here today in an extraordinary procedure, orally moved that 4 the Board strike the issues that we have used as the basis 5 for --
6 JUDGE SMITH: Different matter. Different 7 consideration.
, 8 MR. TRAFICONTE: That's a different consideration.
9 The Board --
10 JUDGE SMITH: Let me tell you what we have done 11 and then I'll let you continue to argue.
12 Mr. Dignan has convinced us -- actually he hasn't.
13 We read the basis D. We know what we thought we were doing
/ 14 or we should have been doing. We know what we thought our i
15 jurisdiction was. And we now recognize that we do not now 16- have nor have we ever had jurisdiction over that basis.
, 17 Granting the motion to dismiss the contention or 18 the motion to reconsider and not accept it, is really of no 19 moment to the problem you have before the Commission and the 20 Circuit.
i 21 It is a ministerial thing on our part. When we 22 found out we didn't have jurisdiction, we can do it now or 23 we can do it later, it doesn't matter. It doesn't matter if 24 we never do it. It is simply a housekeeping matter. If we 25 don't have jurisdiction, we can just say don't bother us.
Beritage Reporting Corporation I
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l I 22222 1 It is not in and it has never been in and we can't accept 2 it.
3 The only thing we're doing by reconsidering is 4 keeping the housekeeping and the record keeping clear, 5 that's all it is. We are not making any judgment within our .
6 jurisdiction as to the merits of the litigation before us.
7 MR. TRAFICONTE: Let me just respond, Your Honor.
. 8 JUDGE SMITH: Just recitation now for then.
9 MR. TRAFICONTE: I understand.
10 JUDGE SMITH: We do not have jurisdiction over 11 that issue.
12 MR. TRAFICONTE: Let me respond very narrowly and 13 present an argument as to why the Board should certify or at 14 least stay pending our opportunity to seek to refer to the 15 Appeal Board.
16 I understand what Your Honor has said about if
. 17 it's a jurisdictional defect then essentially there is 18 nothing new about what you' re doing. And you could do it 19 later. You could never do it and it would still have the 20 same effect. I prefer in that instance that you do it later 21 or never do it.
22 The indications are that you intend to do it today ,
23 and you intend to do it on the record here. I want to lay 24 out for you carefully as I can the real world effects that 25 will flow from the decision. There are going to be real
[' Heritage Reporting Corporation t' (202) 628-4888
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22223 il f "N .
1 world' effects flowing from-the decision.
\ '
A- 2 LJUDGE SMITH: I'll warn you, Mr. Traficonte,-I 3 question whether we can even.take.those'into account.
4 MR. TRAFICONTE: Well, if the Board can defer
.1 5 until some later point or defer until -- in fact, never do 6 it at all since it's a jurisdictional matter, the Board 7 could weigh in its considerations as to whether to make this
., 8 ruling from the bench today, the Board could weigh the real 9 world' impact that this rul'ing is going to have on the 10 issuance of a low power license.
11' JUDGE SMITH: No. No. That is what I do not want 12 to do. I do not want to get'into our eye on the low power.
13 Now we do want to recognize that a resolution
[T 14 given-the significance of the issue right or wrong can 15 create an injustice right or wrong if we don't decide now.
16 I mean, it can create an injustice on your part if we' don't
, 17 decide promptly as to jurisdiction r as to our intent.
18 That is why we took a break today and you were 19 entitled and you brought it to our attention. You both put 20 it before us and you sought a ruling today and you got it on 21 jurisdiction.
22 With respect to the moment in which we expunge --
23 I don't know what word you would like for me to use, 24 " expunge", is that a nice one? -- the contention from the 1
1 25 We're not going to try to give either side a litigation.
l Heritage Reporting Corporation
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Q___._--______._ - _ _ _ - . _ _ _ _ _ . - _ - - _ _ _ -.__ . . _ . _ _ ___ _ ._ - . - . _ . _ . . . . _ _ _ _ _ . _ . _ _ _ _ _ . . _ . - _ _ _ _ _ . - - _ _
l l
22224 l l 1 manipulative, unimportant, nonsubstantive tool to argue
.g 2 before any tribunal. l 3 All we're doing is running our case the way it 4 should be run. We timed our decision and we timed the 5 arguments, based upon the hope that no injustice would be -
6 done if we delayed. But that's all we're doing. We don't 7 have our eye down the street at all. And I don't think you
, 8 want us to.
9 MR. TRAFICONTE: There could be an injustice from 10 action as well as delay. To the same extent that you're 11 persuaded by Mr. Dignan that you should move and act today 12 to expunge this contention and thereby basically --
13 JUDGE SMITH: We're only doing it today because 14 it's timely today. Without regard, expunging the contention 15 has nothing to do with the problem that you're facing and 16 the timeliness. It is only dorte today because it is the
. 17 time to do it. Not because it helps Mr. Dignan or anything 18 else.
19 We arrived at the decision, let's do it. It is 20 only reciting what the effect of what we did today is.
~
21 That's all it is.
22 I think that you have all you need, if you're ,
23 going to use today's events, to explain why the contention 24 was expunged. Presumably the court that you're going to 25 take this to understands the jurisdiction and those things.
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22225 j-~g is MR. TRAFICONTE: Before the Commission, Your (Q). . 2' Honor.
3 JUDGE SMITH: We don't have to advise those 4 people.
. 5 MR. TRAFICONTE: Again,.I make the same request:
6 it's 3:15, if the Board intends to and in fact --
7 JUDGE SMITH: We have done it.
. 8 MR. TRAFICONTE: You have done it.
9 I would request in that event that the Board stay ;
10 the effect of its decision and certify the question. On a 11 oral motion will the Board certify this matter and Mr.
12 Dignan's motion and your decision to the Appeal Board?
13 JUDGE SMITH: No.
["'N
\ l 14 MR. TRAFICONTE: Will the Board then suspend the 15 hearings since the Applicants sought --
16' JUDGE SMITH: There is no prejudice to you
-17 whatever to continue the interrogation of the witnesses.
18 NR. TRAFICONTE: Your Honor, with all due respect, 19 the prejudice is very simple. I would want to get to a phone j 20 and call the Appeal Board and seek an immediate 21 interlocutory of the dismissal.
22 JUDGE SMITH: Today, this very afternoon?
23 ,
MR. TRAFICONTE: I would certainly do it this very 24 minute, if you would suspend the hearings. Because I 25 believe the impact --
p Heritage Reporting Corporation (202) 628-4888
(
l 22226 1 JUDGE SMITH: Well, how much time do you want? l l
I 2 MR. TRAFICONTE: I would like to at least remove j l'
3 myself for a period of time long enough to call the Appeal 4 Board and alert the Appeal Board to the fact that we would 5 like to seek review immediately of the decision -- -
6 JUDGE SMITH: You being the person who has to do 7 it? Now you have a large staff. The witness has been here
, 8 forever. We'll take it into consideration. Let's take a i 9 break.
10 Finish your argument on the need to suspend the 11 hearing so you can make an oral certification.
12 MR. TRAFICONTE: The need that I have to suspend 13 the hearings, Your Honor, is that there's going to be a real 14 world effect of this Board's decision today.
15 The real world effect is going to be the 16 elimination of an issue that a Licensing Board has admitted.
, 17 You are now going to rule it out of court. You're going to 18 expunge the admission of it, so that the Interveners will 19 not have an issue open.
20 JUDGE SMITH: That is not prejudicial to you, only
~
21 in the extraneous use p..u intend to make of it.
22 MR. TRAFICONTE: It's hardly an extraneous use, ,
23 Your Honor, if the issue that is open and being litigated is 24 material and relevant to a low power license being issued.
25 That's not an extraneous use.
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l 1
1 22227 e 3 1 JUDGE SMITH: If it is relevant, as you argue, if t
JN } 2 it is also relevant to a full power license, your remedy is 3 on appeal. As you know, the acceptance or rejection of a 4 contention within the areas as to which we have jurisdiction
-- 5 is not usually the grounds for interlocutory appeal.
6 MR. TRAFICONTE: I'm familiar with that case law 7 and Your Honor is perfectly correct.
., 8 JUDGE SMITH: You're arguing a suspension on the 9 basis as to which we have no jurisdiction. The only 10 interest that we had in doing it timely, we're not going to 11 do anything that impacts upon the considerations of the 12 Commission and the Court on their low power consideration 13 except decide those matters timely.
[} 14 The dismissal or nondismissal, the expunging or
}
15 nonexpunging of that contention is strictly a matter within 16 our jurisdiction, the full-power jurisdiction as to which 17 you have full due process relief if we acted wrongly in our 18 jurisdiction. So we're not.
19 Now I would like to give you some relief to deal 20 with the events of the moment. We're not going to suspend 21 the hearing. We'll give you an extended break, so that you
, 22 can marshal your troops here, your competent counsel and the 23 people back at the office. But we have a hearing to hear.
24 I don't believe that in your motion you had any 25 particular hope, any reasonable expectation for success
/y Heritage Reporting Corporation (202) 628-488?
i(w) 1
22228 )
1 before us. That's just the way it is. j
- (~ 2 Now what do you want? Do you want a half hour? q I
3 We've got to get on with Mr. Donovan.
4 MR. TRAFICONTE: It just ta happens, I mean I 5 cert.4-:- would not need to suspend if another counsel were .
6 in the process of cross-examining Mr. Donovan.
7 It just so happens that I am the author of this
, 8 motion and the person most familiar in my office with 9 exactly what the grounds are and what the law is. And .
4 10 also happen to be in the middle of the cross-examination of 11 Mr. Donovan. That's a completely contingent fact.
12 So the request, although it appears obviously on 13 behalf of the Attorney General is, in fact, a personal
~
14 request. I would like to communicate to the Appeal Board as 15 soon as I can. I 16 Can we break for 20 minutes?
, 17 JUDGE SMITH: I'll give you half an hour. You j 18 could work up to there.
l 19 MR. TRAFICONTE: Can we break for half an hour?
20 JUDGE SMITH: Certainly. And when you come back 21 we'll see what's happening. We'll break until q::arter to 22 4:00. '
23 MR. DIGNAN: Mr. Traficonte --
l 23 JUDGE SMITH: Now, did anybody object to breaking?
25 MR. DIGNAN: No , I don't Object to breaking.
Heritage Reporting Corporation f.~ j (202) 628-4888
p-I L 22229 V:
gw 1 Mr. Traficonte, I assume'you are going to
$_ ! 2. communicate'with the Appeal Board with me.
3 MR.!TRAFICONTE: If we can do that, sure, let's
~
4 .go . Do you have an idea where we can do that?
. -5 -MR. DIGNAN: I don't and I don't know what the 6_ telephone facility --
7 LJUDGE SMITH: First, why don't we find out through
. 8 Mr. Pierce whether there is an Appeal Board available, Do 9 you want.to do that?
10 :MR. DIGNAN: I have no problem with Mr. Traficonte 11 making the call e:c parte finding out if there's an Appeal 12 Board Judge willing to hear us.
13' JUDGE SMITH: Why don't we get to legal counsel of
/~' 14- the Licensing Panel to communicate with the legal counsel to k
'- 15 the. Appeal Board and find out if it can be set up for an 16 oral argument to stay -- what do you want? To stay our
, 17 proceeding or to stay our ruling?
18 HR. TRAFICONTE: To stay the ruling'and to review 19 it.
20 JUDGE SMITH: And just see if what yc0' re seeking 21 is mechanically possible.
22 MR. TRAFICONTE: Yes.
23 JUDGE SMITH: They don't all sit around waiting ;
24 . for your phone call.
25 MR. TRAFICONTE: If we could find that out.
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22230 1 MR. DIGNAN: What also has to be made, I think, 2 clear in fairness to the Appeal Board, and this is the 3 ' reason I want to be there, is the Appeal Board fully 4 understands that all of this is in a stay motion up to the 5 Commission at this point.
6 JUDGE SMITH: I'm only talking about availability.
- i Are they there to hear a motion that the Attorney General
, 6 wants to make and deems important enough to make orally this 9 afternoon. Okay.
10 MR. TRAFICONTE: Yes.
11 JUDGE SMITH: All right.
12 Do you want to do that and we'll come back in 20 13 minutes and sie what the report is.
14 MR. TRAFICONTE: Yes.
( In the meantime you can be working 15 JUDGE SMITH:
16 on your problem.
. 17 MR. TRAFICONTE: Yes.
18 Thank you.
19 rihereupon, a recess was taken.)
20 21 22 .
23 24 25 l
[-
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22231
'l ' JUDGE SMITH:
Gentlemen, Mr.'Dignan wants to go 7~
N_ I -
r 2 back on th'e record'for a moment. )
-3 MR. DIGNAN: Your Honor, the reason I wish to-go ;
v>.. 1 4 'back.on the record was just to put something on the public,
.. 5 record..
^' .6 During the break I went out and called the Office 7 of the General Counsel.of the Commission, Ms. Nordlinger,
, 8 who has been handling the case in the Court of Appeals for 9 the Commission, advised her of the Board's ruling, and that i,
10 is all I did was advise her of the Board's ruling.
11 She, however, suggested to me that somebody might 12 construe that as a'ex parte contact. And I said if that's 13 the case, obviously it will be confirmed because I will be
. [ '\L 14 writing a brief to you tomorrow; that I would also reflect 15 to Mr. Traficonte I had made the phone call, and I have done 16 that outside. And I just wanted that'a matter of record so
, ~17 that no one would -- I certainly didn't consider it ex 18 parte. But if anybody does, I am hopefully curing it by
.19 this statement.
20 JUDGE SMITH: Now that we are back on the record, 21 .as I understand it, the suspension or the interlude that you i 22 seek is to go to the Appeal Board for a very narrow purpose, 23 and that is, to set aside solely nothing about our 24 discussion as to jurisdiction, but solely the issue of
'25 expunging the contention. That's the only thing that you Heritage Reporting Corporation l
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1 22232 f
1 are seeking, nothing else right now.
I !
2 MR. TRAFICONTE: I'm not sure I understand the 3 distinction between the two.
4 What we were seeking was to have the Appeal Board 5 review the Board's decision today of granting Mr. Dignan's ,
6 motion to reconsider the admissibility of --
7 JUDGE SMITH: But review what? The administerial
, 8 act as we regard it of dismissing the contention, or the 9 general rationale of jurisdiction leading to that result?
10 MR. TRAFICONTE: Well, perhaps the reason why I 11 can't fit myself into the question perhaps with an answer is 12 I don't believe it's an administerial act. But I understand 13 the Board does.
JUDGE SMITH: Well, assuming that you agreed there
( 14 was no issue as to our decision on jurisdiction, then there l 15 16 is nothing left by the contention.
, 17 Would that then be an administerial act?
18 MR. TRAFICONTE: Could you put that to me again?
19 JUDGE SMITH: What if everybody agreed we do not 20 now have jurisdiction over Basis D of Contention 19, or did 21 we ever, if everybody agreed with that.
i 22 MR. TRAFICONTE: And we agreed with that, yes. I 23 see.
24 JUDGE SMITH: And if you agreed with that, then i 25 you wouldn't --
l Heritage Reporting Corporation (202) 628-4888
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f 22233 L
-~s 1 MR. TRAFICONTE: Oh, I see.
l \
p k-- m 21 JUDGE SMITH: Then the only thing left would be 3 .the bookkeeping act of throwing the contention out.
o .
4 MR. TRAFICONTE: Yes, I understand. I understand,
- 5 yes.
6 JUDGE SMITH: So it is more than simply the
- 7. bookkeeping act or the recordkeeping act --
. 8 MR. TRAFICONTE: Yes.
9' JUDGE SMITH: -- cf expunging the contention. It 10 is the underlying rationale which you wish reviewed. ')
11 MR. TRAFICONTE: Yes. A combination of the 12 consideration of your jurisdiction, the decision with regard 13 to the-motion to reconsider based on jurisdiction, and then I
/ 14 the administerial act that comes out in the end.
15 JUDGE SMITH: And the consequences of it.
16 MR. TRAFICONTE: And the administerial
. 17 consequences.
18 JUDGE SMITH: Right.
19 So then there is no really neutral thing that I 20 could do to satisfy the whole thing.
~
21 MR. TRAFICONTE: To satisfy both of us, no.
22 JUDGE SMITH: No, right.
23 All right, back off the record. t 24 (Discussion off the record. ) j l
25 (Whereupon, a recess was taken.) !
[ n Beritage Reporting Corporation (202) 628-4888 i
22234 l 1 JUDGE SMITH: Back on the record. 1 I
k
' ~
2 Mr. Traficonte is going to proceed with his cross- ,
3 examination because the chairman of the Appeal Board was not t 4 available and the chairman of the Appeal Panel, Judge Kohl, 5 is temporarily tied up this afternoon in a meeting, but she .
. \
6 will communicate with us in one way or the other before the 7 day is out.
. 8 MR. FLYNN: Your Honor, I think we have one other 9 preliminary matter, and that is the affidavit to which you 10 referred to earlier this afternoon. And I would like to say 11 a few words about it.
12 When we adjourned on Friday, there was a question 13 which I was to address; namely, had FEMA implemented the
( 14 recommendation of Theodore Barry & Associates that FEMA 15 develop a system for document control and retrievable.
16 Over the weekend, I did inquire, and met with
. 17 Vernon Adler and one or two other people at FEMA 18 headquarters and worked with Mr. Adler on this affidavit 19 which I have submitted to the Board and have given to the 20 other attorneys present here todcy.
~
21 The document which Mr. Traficonte brought to our l 22 attention on Friday was a work product from a contract with ,
1 l 23 Theodore Barry & Associates. It was a second of three tasks 24 which TBA was to accomplish. It included recommendations as 25 a result of the first task which was interviews with people Heritage Reporting Corporation (202) 628-4888
1 22235 f "s1 1 in the RE? ;rogram, the radiological emergency preparedness i
A}c - 2 program.
3 There was a third task which was the production of 4 a manual, an exercise program manual.. Actually, there was at 5 to be worked on proposed guidance memoranda, but the product 6 that I wanted to focus on is the exercise program manual. i
\
7 Now, I have with me today the manual that was
,-- 8 prepared by Theodore Barry & Associates under the third task 9 of this contract. As you can see, it is a large volume.
10 But the point that I wanted to make is that the one entry 11 dealing with document control and retrieval is a single j 12 page, and all it says is, " Document control and retrieval 13 (To be developed by FEMA)." That is the entire
'["') 14. implementation of the recommendation that found its way into Q} 15 the proposed exercise program manual prepared by Theodore !
16 Barry'& Associates.
17 Now, my inquiry did not end there. It happens 18 that during this same time frame the Federal Energency l'
19 Management Agency had proposed to the National Archives and 20 Record Service a document control schedule. The final 21 approval from NARS was received on September 19, 1988. That 22 document is attached to the affidavit in its entirety.
23 Now a two page portion of it, which is referred to l 24 in the affidavit, deals with the documents of the type that f
25 are at issue here. I have attached the entire schedule i
f Heritage Reporting Corporation (202) 628-4888 s
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22236 1 simply for completeness so that there would be no question
~
4 2 that I have left out any pertinent section.
3 That section of the document control schedule 4 which deals with REP documents is consistent with Guidance 5 Memorandum 16, which was in effect prior to September 1, .
6 1988, and was in effect during the entire time frame at 7 issue here.
8 So the representation made by Mr. Donovan that, in 9 his judgment, the policy of FEMA was embodied in Guidance 10 Memorandum 16 is borne out by what I was able to discover 11 over the weekend.
12 JUDGE SMITH: Have you had an opportunity to look 13 at the materials, Mr. Traficonte?
14 MR. TRAFICONTE: I have read the declaration and 15 perused the lengthy attachment which is the records 16 disposition procedure for FEMA.
, 17 I would just like an opportunity, I hesitate to 18 say overnight, but perhaps overnight to take a look at this 19 in a little bit more detail. ;
i 20 JUDGE SMITH: All right. This was on the record. !
l 21 'Whereupon, 22 RICRARD W. DONOVAN , l 23 having been previously duly sworn, was recalled as a witness 24 herein and was examined and testified further as follows:
25
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DONOVAN - CROSS 22237 r
1 CROSS EXAMINATION (Continued)
N~ ! 2 BY MR. TRAFICONTE: {
3 Q Good afternoon, Mr. Donovan.
4 A (Donovan) Good afternoon.
- 5 MR. TRAFICONTE: Your Honors, I am still at Roman i '
6 Numeral I(e) .
7 BY MR. TRAFICONTE:
, 8 Q- Could I direct your attention, Mr. Donovan, to 9 Applicants' Exhibit 43 (f) , your Seabrook exercise report, 10 and specifically to page 231.
11 Pages 230 and 231 set forth the evaluation of the 12 performance of the New Hampshire Yankee ORO with regard to 13 Objective No. 24, correct?
IN 14 A (Donovan) That's correct.
. 15 Q I would like to ask you, you identified the 16 inadequacy there that's identified as Issue No. 1. You
, 17 characterize that as an ARCA, correct?
- 18 A (Donovan) That's correct.
i 19 Q Can you explain what the inadequacy that was 20 identified with regard to Objective 24 is precisely?
21 A (Donovan) Well, the objective deals with handling 22 contaminated injured or exposed persons. The evaluations 23 described on these pages is that the staff identified 24 contamination, took steps to remove contamination, and 25 properly dealt with the individual. The contamination was f](j Heritage Reporting Corporation (202) 628-4888
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m m ._ - mm_
DONOVAN - CROSS 22238 1 recognized that it existed, actions were taken to remove it, 2 and the act3ons were effective.
3 The following that portion of the drill, since 4 this was run as a drill, the staff was interviewed as to 5 their understanding of the two types of instruments being -
6 used in the exercise. One was a rate meter. This counts 7 per minute. And one was an exposure meter, measuring an MR 8 per hour.
9 And the results of our interview was that the 10 staff didn't understand the significance and the difference 11 between the two.
l 12 In our training program that FEMA initially set up l
13 for this type of aspect, we asked that both issues be 14 addressed in a training. So what we identified here as an
('
15 ARCA is that the staff should receive additional training on 16 the use of the two types of instruments and the purpose for
. 17 the two types of instruments.
18 Q You recall our discussion last Thursday regarding i 19 the distinction between your judgment that an inadequacy is !
)
20 an ARCA as compared to it being judged a deficiency.
21 Do you recall that testimony?
22 A (Donovan) Yes, I do. .
23 Q And you recall, and again I don't want to limit 24 your testimony. I do want you agreement with this l 25 characterization.
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f^NL1 l' .I understood your testimony to be that a
/-
/; 2 deficiency is an: inadequacy that has a greater consequence 3 for public health and safety than an ARCA does.
V.
L '
4 Is that a fair statemend?
<* 5 A (Donovan) Well, I wouldn't say that's a fair I
6 statement. A deficiency has impact on public. health and 7 safety, and'ARCA may or may not have impact on the public
- - 8 health and safety.
~
9 Q Well, let's pursue that line a little bit more 10- then.
11 When an ARCA-has impact.on public health and 12- safety, is.it that the extent or severity of the impact is 11 3 'not enough to merit the deficiency rating?
q.
- 14. JUDGE SMITH: Do you have all the information you 15- need to answer-that?
16 THE WITNESS: (Donovan) No. It's not clear to me
,_ 17 what you mean by the --
18 MR. TRAFICONTE: By the severity of the --
19 THE WITNESS: (Donovan) Yes, right.
20 JUDGE SMITH: Can you assume that the ARCA remains 21 uncorrected in your question? j 22- MR. TRAFICONTE: yes. In the question, the ARCA 23 remains uncorrected as would the deficiency remain 24 uncorrected.
25 BY HR. TRAFICONTE:
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DONOVAN - CROSS 22240 1 Q Let's review it and perhaps it will be helpful to 2 review.
3 You recall that I asked you some questions 4 concerning, and I'm searching for the exhibit number. It's 5 MAG Exhibit No. 9?.
l~' 6 Do you have that available to you? It's an 7 excerpt of your --
, 8 A (Donovan) Yes, I do.
9 0 -- your review of the Trojan plant in '88, I 10 believe?
11 A (Donovan) Yes.
12 Q Do you recall that there was an instance there 13 involving the respirator use by field monitors?
14 Do you recall that?
{
15 A (Donovan) Well, it wasn't respirator use. It was 16 the fact that they weren't qualified to use the respirators
, 17 which requires an inspection by a physician and certain 18 conditions for respirator qualification.
19 But, yes, I recall the issue.
20 Q And that was judged a deficiency, correct?
~
21 A (Donovan) Because the failure --
l 22 Q Well, let me just go in steps. .
23 It was judged a deficiency, correct?
24 A (Donovan) What was judged a deficiency?
25 Q The fact that these field monitors had not been Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 22243 J/~ 1 _ certified in correct respirator use.
$s e) 2 A (Donovan) No. I believe my -- I can't' recall the 3 specific words I used, but it was their failure to use the
'4 respirators which resulted in overexposure of the L . 5 individuals, and that was the issue for the deficiency.
- s 6 They should have done two things from our perspective, which 7 since you only copied the summary page, and'I don't have the
, '8 full copy of the exercise report with me.
'9 But my memory is that there was a clear indication 10 that these people might exceed their emergency worker dose-11 level, and a decision on one end, the controlling end was, 12 well, they'would use the respirators. And by using the 13 respirators, they would reduce the dose that they would
/~' 14 take. So, therefore, they wouldn't receive their emergency
'*' 15 worker dose commitment.
16 But on the other end, they knew that they weren't
, 17 qualified to use these respirators. They didn't communicate 18 that fact and they didn't put them on and use them.
I 19 So the issue here was the fact that, as I said, I 20 believe my answer, emergency workers are members of the 21 public, and in this case they received more dose than they 22 should have received. They should have been, (a) either 23 been trained and use the respirators; or (b) a different 24 decision should have been made and they should have been 25 asked not to'go back into the plume in this case since it
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DONOVAN - CROSS 22242 j 1 was a field monitoring team to take center line plume
- 2 measurements, and which was acknowledged by everyone to be a 3 high dose rate in the plume center line. )
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5 j
6 j I
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, 8 9
10 11 12 13 15 16 17 18 1
19 20
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23 24 25
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DONOVAN - CROSS 22243
,f--( 1 A (Donovan) You misquoted me earlier. An ARCA is
\-/ 2 a demonstrated observed inadequacy of performance and 3 doesn't necessarily mean that it's impacted on public health 4 and safety.
- - 5 Again, an exercise is a test of the 6 implementability of the plan or the capability of 7 individuals to implement their plan.
c 8 And so performance in implementing their plan may 9 have impact on public health and safety and may not. So we A
10 may have an ARCA that may have impact on public health and 11 safety and we could have an ARCA that would not have impact 12' on.public health and safety.
13 0 That point I'm clear on.
14 I'm pressing you on the ARCAs that do have impact !
'~'
15 <xt public health and safety. And I'm asking you to refine 16 as best you can the distinction between that ARCA and a
, 17 deficiency as to the nature of the distinction.
18 And the question that was on the table is: is it a L
19 difference in severity?
20 Does one inadequacy that is judged in ARCA, does 21 it have less severe public health consequences?
22 A (Donovan) You have to look at all aspects. What 23 was the scenario? What does the plan call for? What was 24 the performance or lack of performance? What was the 25 results of the behavior?
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DONOVAN - CROSS 22244 l
I 1 We were looking at -- when you look at all of l
I.
2 those issues -- I tried to point out earlier last week EX-1 I' 3 defines planning standards. And you walked me through EX-3 4 which showed some linkage to objectives. We said any one 5 objective may not constitute a total planning standard. .
6 And it's in the context that one has to apply 7 judgment and perspective.
. 8 Q Let's come back to page 231.
9 And let me put the question to you this way: why 10 isn't the fact that the medical and nursing staff at this 11 hospital, why isn't it the fact that their failure to 12 understand the effects of radiation -- why isn't that a 13 deficiency instead of an ARCA?
14 A (Donovan) That's easy from my perspective.
15 I repeat: the individual came in with simulated 16 contamination. The staff was able to use the existing l, 17 instruments, determined he was contaminated, and take 18 actions to remove the contamination.
19 So their confusion on what one instrument was 20 telling them versus another instrument did not preclude j 21 their ability to perform their job. And their job in this 22 case was to treat a person who had injuries and ,
i 23 contamination, because that was the exercise scenario.
)
24 And so it had no impact on his health. And it had 25 no impact on their health. Because counts per minute versus
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DONOVAN - CROSS 22245
-% 1 MR per hour, in this particular case, did not preclude them
\-- 2 from doing their job. That is to recognize again, the 3 individual is contaminated. They take steps to deal with 4 his injuries and deal with his contamination, remove his
. 5 contamination to an acceptable tevel as defined by the 6 procedures. And they did that all in a very professional 7 manner without any impact on their health and safety or his
. 8 health and safety.
9 Q And the issue identified here runs to both the 30 health and safety of the medical providers as well as the 11 contaminated injured individual? Both groups of people are l 12 part of the public that's being protected by the objective; 13 correct?
/~'N 14 A (Donovan) By the objective. But the issue that
! )
15 we define here doesn't impact the health and safety. The 16 issue was, they did not ask the question: what does counts
. 17 per minute mean to you versus 55 MR per hour? Not all of 18 the staff could give us a clear answer. And in that regard 19 we felt that perhaps the staff should need some additional 20 training.
21 Again, it did not affect their performance. It 22 didn't affect their health. And it didn't affect the 23 individual who was playing the accident victim's health.
24 Q Now is it a fair statement that it didn't affect f 25 their health or the accident victim's health in this case, l'/~N Heritage Reporting Corporation (202) 628-4888 t
s n-)
DONOVAN - CROSS 22246 1 but that kind of absence of knowledge could affect their I
- 2 health and the injured individual's health in another case? .
1 3 A (Donovan) No.
4 They recognized the instrument to use for 5 detecting contamination, which is usually called a count -
6 instrument, it gives you counts per minute. And they 7 recognize by appropriate survey techniques where the
, 8 contamination was and they took steps to decontaminate them.
9 And they took steps to ensure that they themselves 10 were not cross-contaminated because they're appropriately 11 dressed out, et cetera. And they took steps to ensure that 12 the contamination was not spread beyond the physical work 13 area that they were located in.
-1 14 Q Now, could I ask you to turn to page B-4 of 15 Applicants Exhibit 43 (f) .
16 A (Donovan) B-4, Appendix B-47 17 Q Appendix B-4, yes.
18 First, I just want to clarify: all of Appendix B 19 sets forth the verification of the corrective actions that 20 have been taken and verified by FEMA, actions taken by the
~
21 State of New Hampshire; correct?
22 A (Donovan) That's correct. ,
23 Q And the need for these corrective actions became 24 clear to FEMA as a result of its review of the 1986 State of 25 New Hampshire exercise?
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gg 1 A- (Donovan) No, that's not technically correct.
L$ s/ <]
po 2 The 1986 exercise documented certain issues. The' H
u 3 issues were presented to the state and the state responded 4 with action plans to produce corrective actions..
. 5 And so these are not -- first column on the far 6 left defined the header of either " deficiency or area-7 requiring corrective action" is the exercise issue
, 8 ideatified in the 1986 exercise report.
9 The action proposed in the second column.is the 10 action that the state committed to back in '86 to that 11 action. We call it corrective action.
12 And the third column is the comment column of the 13 observer or observers who was asked to verify the corrective f 14 action.
\
15' JUDGE McCOLLOM: In the 19887 16 THE WITNESS: (Donovan) In the 1388 exercise;
, 17 yes.
28 So the first two columns are history;'and the
. ') third column is activity as a result of the 1988. exercise.
20 BY MR. TRAFICONTE:
- - 21 Q All right, that's helpful.
22 I f, for example, we turn to Appendix B and we're 23 on page B-4 and we look in the first column and at the 24 bottom we find deficiency, I'm correct, am I not, in 25 assuming that what's set forth there is an inadequacy Heritage Reporting Corporation O, (202) 628-4888 4
DONOVAN - CROSS 22248
- 1 identified by FEMA in the ' 86 exercise and judged to be a
(' i 2 deficiency; correct?
3 A (Donovan) In 1986.
4 0 In 19867 5 A (Donovan) Yes. .
6 Q Now, do you agree that FEMA used the same standard 7 to judge the performance of the State of New Hampshire in
, 8 1988 as it used in 19867 9 A (Donovan) We had different objectives in 1986.
10 0 Well, let's imagine that we hypothesize an 11 identical objective or at least an identical part of the 12 exercise that was designed to elicit and test the same 13 performance. Assume that. Would you agree that FEMA used 14 the same standard to assass the adequacy of the performance 15 of the state?
16 A (Donovan) No. We had different standards, too.
, 17 0 You had different standards? I 18 A (Donovan) Right.
19 Q Can you articulate the difference between the 20 standards?
I From 1983 to 1988 we had exercise 21 A (Donovan) 22 objectives, and we evaluated these objectives by facility ,
1
)
23 within an organization. 1
- 24. In 1988 with promulgation of the exercise 25 evaluation modules of which was offered as an exhibit, l
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DONOVAN - CROSS 22249 P-s 1 Exhibit 95, that process we evaluate by objectives across IN/ 2 the organization.
3: So it's my perspective and position that the 4 standards are different because you would evaluate the
.' 5 -objective across the total organization, the. organization.
6 In this particular example that you've asked has 7 state and local responders responding at multiple locations.
>- 8 We e- .uate the objective across the perspective of the 9 respond organization which is the State of New Hampshire.
10 11 12 13
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. 17 18 19 20 21 J 22-23 )
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DONOVAN - CROSS 22250 1 Q Well, let me put another question to you along t
2 the same line.
3 If the State of New Hampshire failed or performed 4 in such a way in 1988 that would be indistinguishable from j
5 the way it performed in 1986, would FEMA's judgment as to -
6 whether that was a deficiency or an ARCA be the same?
7 A (Donovan) It would depend on the objective. )
l
, 8 If the objective were solely located such as the l l
9 previous example you had me on dealing with one objective !
l 10 and one hospital and the performance was the same and the 11 issue were the same, then the evaluation would be the same. l 12 Q It would be the same.
13 A (Donovan) But if the performance is, for example,
( 14 determining resource needs and prividing resources in 15 response to those needs, and in this case it's covered 1
16 across the board, and in some cases with one .lement of the ]
1 17 organization able to compensate for other elements of the j 18 organization, we would look at the whole response effort and i
19 not just the response effort at one location.
20 Q You say you would look at the whole response 21 effort.
22 Are you describing how you would assess the '88 .
]
23 performance as compared to the '86 performance?
24 A (Donovan) Yes. I'm saying in '86, the issue was 25 evaluated by objective by facility. In '88, we just l
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DONOVAN - CROSS 22251
~- 1 evaluated by objective.
Os/ 2 Q Does that mean that it may well have been easier l
'3 to get a deficiency in ' 86 than it was in ' 887 ]
I
! 4 A (Donovan) I don't know how to answer that I
-.. 5 question.
6 Q Is the question unclear?
7 A (Donovan) Well.
- - 8 Q' .I mean let's imagine you are the Applicants for a 9 moment.
4' 10 A (Donovan) The Applicants in this case being the 11 State of-New Hampshire?
12 Q The Applicants for the license.
13 A' (Donovan) Oh.
f 14 .Q And a representative --
\
15 A (Donovan) In this example, our customer is the 16 State of New Hampshire.
, 17 Q I understand that.
18 A (Donovan) They are the ones that requested FEMA
'19 review and evaluation and approval of the plan _and a FEMA 20 finding on the status of their preparedness.
'" We are aware, 21 Q Right. But again just to review.
22 are we not, that a deficiency finding is going to prevent 23 the reasonable assurance finding, correct?
24 A (Donovan) As a general rule, correct.
25 Q As a general rule, f^ Heritage Reporting Corporation J (202) 628-4888
DONOVAN - CROSS 22252 1 A (Donovan) As we have discussed before where are ,
2 the deficiency and what planning standard, et cetera.
3 Q Yes. And the question I'm putting to you is, was 4 it easier to get a deficiency in ' 86 than it was in ' 88?
5 A (Donovan) I would suppose that would be a matter .
6 of perspective and opinion. I couldn't answer.
7 Q What's your opinion of that?
i 8 A (Donovan) What's my opinion?
9 Q Yes.
10 A (Donovan) I don't have a clear opinion.
11 Q You don't have an opinion on whether it was easier 1
12 in light of the methodology and the standards used, whether 13 it was easier to get a deficiency in '86 than it was in the 14 '88 exercise?
15 A (Donovan) Again, there is four factors. What was 16 the scenario being test? Were the scenarios identical?
, 17 What was the conditions for the exercise? And what were the 18 conditions that identified issues?
19 I would have to look at all of those factors. To 20 me, that doesn't have enough specifics for me to render an 21 opinion as a carte blanche statement.
22 O Well, let's take a look at this particular .
23 deficiency that's set forth on B (4) , and I am going to read 24 just the first sentence.
25 "The ability to fully stafr' facilities and Heritage Reporting Corporation f (202) 628-4888
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L DONOVAN - CROSS 22253 i l
, ~s 1 maintain staff around the clock was not adequately 2 demonstrated for some functions by the State of New l .ks/
3 Hampshire."
4 Then I take it what follows are some particulars,
. 5 correct? .J l
6 A (Donovan) Yes.
I 7 Q And that's judged the deficiency. l
, 8 Now isn't that essentially the same as present-day 9 ' Exercise Objective No. 34 which is set forth in your report i
10 I believe on page -- I thought I believed.
11 I'm sorry. Give me one moment and I'll put my 12 hands on it.
13 (Pause.)
'/N 14 BY MR. TRAFICONTE:
4 15 Q On page 198.
16 A (Donovan) That's basically the same objective,
, 17 yes.
18 Q It's basically the same objective, correct?
19 A (Donovan) Yes, it is.
20 Q And in 1986, the State of New Hampshire was unable 21 to demonstrate 24-hour staffing, and it was judged a 22 deficiency, right?
23 A (Donovan) In some functions.
24 Q In some functions, and they are articulated there. ,
25 A (Donovan) Yes.
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DONOVAN - CROSS 22254 1 Q And you will recall that I asked you some 2 questions last week about the Extent of Play agreement with 3 the State of New Hampshire in the '88 exercise which 4- limited, did it not, the areas and locations where 24-hour 5 staffing was to be demonstrated?
6 A -(Donovan) Documented how it would be demonstrated 7 at the locations.
. 8 Q Whatever language you are comfortable with.
9 The Extent of Play documented the locations where 10 24-hour staff was to be demonstrated, correct?
11 7. (Donovan) That's correct.
12 Q Doesn't it mean that it also documented the areas 13 and locations where 24-hour staffing was not going to be 14 demonstrated?
15 A (Donovan) Well, again, if you recall our 16 discussion, it documented where it would be demonstrated and 17 where the process would be discussed and demonstrated.
18 Q Turn to page 200 for a moment, Mr. Donovan. And 19 page 200 sets forth other issues. And I take it this is a 20 part of your report that should be understood as separate 21 from any particular discussion of an exercise objective, 22 correct? .
23 A (Donovan) That's correct.
24 0 '2hese are generic or more general issues.
I 25 Issue No. 1, in fact the only issue you identify, l
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DONOVAN - CROSS 22255 7'N 1 'I believe, for the State of New Hampshire is, "A New
' /' 2 Hampshire plant issue: Arrangement for 24-hour continuous 3 operation at staging areas and receptions centers."
a 4 Now that you identified as an issue, but I take it a 5 that the failure to demonstrate the 24-hour continuous 6 operation at those two locations was not a deficiency.
7 A (Donovan) That's correct.
, 8 Q Was that because the Extent of Play that FEMA had 9 signed off on had no required that 24-hour continuous 10 operation be demonstrated at those two facilities?
11 A (Donovan) No, it is not.
12 Q All right. That was not a part or an aspect of 13 the Extent of Play.
/N 14 A (Donovan) That's correct.
\ )~
15 Q It was not. l I
16 Then why isn't the failure to demonstrate 24-hour l l
, 17 continuous operation at the staging areas and reception 18 centers parallel, and I want you to again reference B(4),
19 why isn't that parallel to the deficiency that New Hampshire 20 earned by its failure to fully staff facilities in 19867 21 A (Donovan) Well, I'll try explain again since I 22 thought I explained --
23 Q I apologize if you already explained this.
24 A (Donovan) An exercise is a test of the plan. The 25 plan that we tested did not call for 24-hour continuous
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1 DONOVAN - CROSS 22256 1 staffing of the staging areas and the reception centers of I 1
2 the superviso'ry staff.
3 So, therefore, if our premise is that the exercise 4 is a test of a plan, we cannot create a deficiency for a 5 function that the plan doesn't call for to be demonstrated. .
6 My definition of a plan issue that I believe I 7 gave you last week was that a plan issue was a function that i 8 we. identified -- an issue that we identified as part of the 9 exercise on a function that we didn't test in the exercise.
10 In this case, there was no way to test it because 11 the state's plan that we exercised did not call for 12 continuous 24-hour staffing. So we pointed it out as an 13 issue. The state has responded to that issue. They have l 14 changed their plans. The plans now call for 24-hour ,
15 continuous staffing. They have identified existing 16 arrangements to New England compact for the one area and 17 they have supplemented that by identifying an additional 18 pool of personnel resources in the state who have been 19 trained to fulfill staff supervisory positions at the
\
20 reception centers.
21 0 But the deficiency rating in 1986, based on the l 22 failure to fully staff facilities and maintain 24-hour ,
23 staffing, that was a deficiency that FEMA noted on this same 24 plan, was it not?
25 A (Donovan) I believe at that time, and I haven't l Heritage Reporting Corporation i
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DONOVAN - CROSS- 22257 I reviewed the plan since. changes were made to the plan in (f-sy)
Ns- - 2 1986,.so I.cannot speak with 100 percent hindsight. But.it 3 is my impression that the plan called for 24-hour staffing 4 state policy who man access and traffic control points.- And 5
. the deficiency, as it is described on this page, said that 6 the state'didn't demonstrate that they had 24-hour staffing 7 for this particular response function.
- . 8 Q I understand. Let me ask you a different 9 question.
10 At the time that this judgment was made that there 11 'was a deficiency in '86, did the plan call for 24-hour 12 staffing at the staging areas and reception centers?
13 A (Donovan) Not to my knowledge?
r^\ 14 Q It did not?
f 15 A (Donovan) That's correct.
16 JUDGE SMITH: Let's cut off at a convenient place
.- 17 because we have a report that will be of interest to you in 18 your-Appeal Board matter.
19- MR. TRAFICONTE: Could I ask ---
20 JUDGE SMITH: Yes, go ahead. I was just saying at i 21 an appropriate place.
22 MR. TRAFICONTE: Oh, I'm sorry. Cut it off at an 23 appropriate place.
24 JUDGE SMITH: Yes, at an appropriate place cut off 3 l
25 your. cross-examination. ;
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b DCNOVAN - CROSS 22258 1 MR. TRAFICONTE: I think it can be one more 2 question.
3 BY MR. TRAFICONTE:
4 Q Could you restate your last answer?
5 Is it your understanding then that the plan in '86 6 did not have A'4-hour staffing at the staging areas and 7 reception centers?
, 8 A' (Donovan) That's my understanding. The plan I 9 reviewed just prior to the exercise did not call for 24-hour 10 staffing at these two locations.
11 Q No, I understand.
12 14y question was focused on the ' 86 plan that was 13 being reviewed and exercised in February of ' 86 and found deficient in this regard.
( 14 15 Did that plan call for 24-hour staffing at staging 16 areas and reception centers?
17 A (Donovan) I can't --
18 Q You don't know one way or the other?
19 A (Donovan) That's correct, because I have not 1 20 reviewed that plan without changes. The plan I reviewed in
. i 21 '88 already had ene set of changes made to it. But it was 22 my understanding -- -
23 MR. TRAFICONTE: Last question, Your Honor, and we 24 can take that break.
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! r- 1 BY MR. TRAFICONTE:
\/ ~ 2 Q Do you think it's appropriate that FEMA found no 3 deficiency in '88, even though there wasn't 24-hour 3
- I 4 continuous operation at the two locations, even though in
, . 5 '86 FEMA had found a deficiency because at other locations j
. )
6 the state had not provided 24-hour staffing? I 7 A (Donovan) Yes, and I think I have explained
, 8 several times why it's appropriate.
9 JUDGE SMITH: Do you want to take a microphone and 10 give your report?
11 It doesn't have to be on the record unless you 12 want it on the record.
13 MR. PIERCE: No.
14 JUDGE SMITH: Off the record.
'~'
15 (Discussion off the record. )
16 MR. DIGNAN: Tomorrow I will celebrate my
, 17 fifteenth birthday as involved in the Seabrook case.
18 JUDGE SMITH: Well, you said that last year.
19 MR. DIGNAN: No, it was fourteenth last year.
20 JUDGE SMITH: Fourteenth.
21 MR. DIGNAN: I had hoped the fifteenth wouldn't 22 come, but it does tomorrow, and this is the fifteenth 23 birthday where I will have been -- not in a hearing room, I 24 guess. But in any event --
25 MR. TRAFICONTE: Many happy returns, j'~N Heritage Reporting Corporation 1 I
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22260 l 1 MR. DIGNAN: Thank you.
2 (Laughter.)
3 MR. DIGNAN: If the Court of Appeals comes
. i 4 through, life will be wonderful.
5 In any event, I was going to say there is no right
- 6 of reply in the usual sense, of course, because it's an 7 objection, but let me just check with Mr. Trout. What I was l l
, 8 going to ask, if no one objected, if he told me he didn't 9 want to be heard at all further, I could convey that to Mr.
10 Pierce perhaps over at the hotel and then the Board would 11 know that there was no question to be heard.
12 MR. BROCK: Your Honor, I did make the 13 representation that I would file today, and I understood the 14 Board would make the ruling tomorrow morning when Mr. Trout
{
15 would be here. So I don't have a problem with it until in 16 the morning.
. 17 JUDGE SMITH: Well, it seems to me that I think 18 the papers were ripe for us to rule.
19 MR. DIGNAN: All right. So be it.
20 JUDGE SMITH: And I think we ought to do that.
21 MR. DIGNAN: Now there is two more --
22 JUDGE SMITH: Who is going to argue for the Staff .
23 tomorrow, Mr. Bachmann?
24 MR. BACHMANN: That's assuming we still will have 25 oral argument; is that correct?
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-". 1 JUDGE SMITH: Oh, that's right, I forgot. You are I
-) 2 going to give us a paper tomorrow.
3 MR. BACEMANN: Oh, wait a second. We have got a e
4 few things here.
. 5 We are to give you a paper on the --
6 JUDGE SMITH: On the late filed contention.
7 MR. BACEMANN: -- late filed contention.
, 8 The motion in limine we were going to address 9 orally if the other parties decide to go with an oral <
- a. 0 presentation. We were not going to file a paper on the 11 motion in limine.
12 JUDGE SMITH: Well, the motion in limine we regard 13 as ripe for disposition on the papers. If it's not, that
'] 14 changes the whole complex.
]
15 Does the Staff affirmatively ask to be heard? Is 16 there something that you affirmatively wish to have input
, 17 into it?
18 MR. BACHMANN: No , there is not.
19 JUDGE SMITH: All right, then do you object to us 20 ruling on the papers?
21 MR. BACHMANN: No, the Staff does not object to 4
22 that.
23 JUDGE SMITH: All right. So tomorrow we are going 24 to get a paper from you on the late filed contention?
25 MR. BACHMANN: That's correct.
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MR. DIGNAN: Your Honor, there are two other motions in limine outstanding. And that is the one to the g
3 prefiled testimony of Arthur Lonergan. And to refresh the 4 Board's memory, that's the one with the doctor and the two 5 nuns. And as I have indicated to you, the motion now only ,
6 speaks to the doctor.
7 Then the other one is the G; ard St. Hilaire, et
, 8 al., panel. This is, the testimony concerning bed buses.
9 Mr. Cook is prepared to argue those whenever anybody else 10 is. And if time could be used up on those, we could 11 profitably do that also.
12 JUDGE SMITH: Not tomorrow.
13 MR. DIGNAN: All right, fine.
14 JUDGE SMITH: Even as it is, we are going to be 15 squeezed to take care of the matters we have scheduled.
16 MR. DIGNAN: All right.
. 17 JUDGE SMITH: And to have Mr. Traficonte finish 18 Mr. Donovan. So it will not be tomorrow. We won't be 19 prepared either.
20 MR. DIGNAN: All right. So then as I understand 21 where we are for tomorrow is we're going to commence at 22 9:15. ,
23 JUDGE SMITH: No, we're going to commence at 9:00, 24 but Mr. Traficonte will not have to be here until 9:30.
25 MR. DIGNAN: And at 9:00 we'll be taking up the t Heritage Reporting Corporation (202) 628-4888
~
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g 22263 p- ] 1 Staff position on the late' filed contentions.
't
- - 2 JUDGE SMITH: We will announce our ruling, I hope, 3 on the --
.w 4 MR. BROCK: Sikich-Paolillo.
4 5 JUDGE SMITH: Sikich motion.
6 MR. DIGNAN: Sikich and Paolillo.
7 JUDGE SMITH: And hear what the Staff has to say,
- i. 8 and perhaps even announce our ruling on the late filed 9 contention unless the Staff's argument is more extensive 10 than I would expect at this time.
11 MR. DIGNAN: All right.
I 12 JUDGE SMITH: I hope we can do that.
13 So you have until at least 9:30 then, Mr.
'O 14 Traficonte.
15 MR. TRAFICONTE: Yes, sir.
.16 JUDGE SMITH: Anything further before we adjourn?
, 17 (No response.)
18 JUDGE SMITH: Nothing further.
19 We are adjourned until 9:00 a.m.
20 (Whereupon, at 4:35 p.m., the hearing was 21 recessed, to resume at 9:00 a.m., Tuesday, May 23, '
_, 22 1989.)
23 24 25 p)
(
Heritage Reporting Corporation (202) 628-4888 l
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i i
CERTIFICATE g W
This is to certify that the attached proceedings before the ,
United States Nuclear Regulatory Commission in the matter ,' Ij 1
e i
1 of:
, Name: Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2)
Docket No: 50-443-OL 50-444-OL (On-site Emergency Planning)
Place: Boston, Massachusetts l Date: May 22, 1989 were held as herein appears, and that this is the original
{
transcript thereof for the file of the United States Nuclear Regulatory Commission taken stenographically by me and, thereafter reduced to typewriting by me or under the i
direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
1
/S/ ,
- v. .
(Signature typed) : Donna L. Cook Official Reporter Heritage Reporting Corporation HERITAGE REPORTING CORPORATION (202)628-4888 l
CERTIFICATE 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 (On-site Emergency Planning)
Place: Boston, Massachusetts Date: May 22, 1989 l
(} were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken stenographically by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
/S/ ,
(Signature typed) : Donna L. Cook Official Reportar Heritage Reporting Corporation HERITAGE REPORTING CORPORATION (202)628-4888
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