ML20247L369
| ML20247L369 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/23/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#289-8689 CLI-89-08, CLI-89-8, OL, NUDOCS 8906020147 | |
| Download: ML20247L369 (76) | |
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4' DOCKETED uinuc May 23, 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.,t.
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before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
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PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL OF NEW HAMPSHIRE, el Al.
)
50-444-OL
)
(Seabrook Station, Units 1
)
(Offsite Emergency and 2)
)
Planning Issues)
)
APPLICANTS' ANSWER TO THE MOTION OF THE ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS FOR A STAY OF A LICENSING BOARD ORDER EXPUNGING BASIS D. OF CONTENTION MAG-EX19 INTRODUCTION Under date of May 22, 1989, The Attorney General of The Commonwealth of Massachusetts (MAG), on behalf of himself and three other interveners in the above entitled proceeding, filed with the Commission a document entitled:
" Interveners' Motion for Reconsideration of CLI-89-08 and Renewed Motion for a Stay of the Issuance of a Low Power License in Light of the Present and ongoing Litigation of an Issue Material to the Issuance of a Low Power License in the Full Power Proceeding" (hereafter " Motion").
The thrust of the Motion 1.1 to have the Commission reconsider its decision in Public STAYOPPS.SB DR
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Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-89-08, 29 NRC (May 18, 1989), (hereafter referred to as CLI-89-08 and cited to the slip opinion).and to reverse that decision in light of the pendency before the so-called "off-site" licensing board in this docket of an issue allegedly raised by the admission into litigation by that board of basis D to contention MAG-EX-19 (hereafter
~
referred to as " MAG-19D").
Upon receipt of the Motion, the Applicants brought the t
Motion and'its gravamen, MAG-19D, to the attention of the Licensing Board.
We pointed out to the Licensing Board that the gravamen of the Motion was that the Licensing Board had intended to, and did, admit an issue into its-proceeding which was a prerequisite to issuance of a low power license.
After hearing the parties at some length, II. 22178-22225,1 the Licensing Board ruled that if, as argued by MAG, the contention was a contention affecting low power license issuance, then it was not now,-and never had been, within the jurisdiction of the Licensing Board, and therefore the Licensing Board granted a motion to reconsider made by the Applicants and " expunged" MAG-19D.
Tr. 22223-25.
The effect of this ruling was, of course, to undercut the force of the Motion before the Commission.
1 We understand this transcript will be in Bathesda as of the morning of May 23, 1989. STAYOPPS.58
After the ruling, MAG requested the Licensing Board to stay its ruling pending appeal of the decision to expunge the contention to this Appeal Board.
The Licensing Board denied this relief, but did provide a recess in order to allow an j
effort to be made to ascertain whether the Appeal Board would hear an oral motion for such a stay.
The parties were advised through the office of the Appeal Panel Chairman, and subsequently by the Appeal Panel Chairman, that any such motion should be put in writing and filed with the Appeal Board on the morning of May 23, 1989.
The other parties, including the Applicants, were advised that they were free to file, though not required to file, a reply in anticipation of the stay request of MAG.
Herein Applicants do so and say that the stay request should be denied.
ARGUMENT I.
THE MOTION IS A REQUEST FOR THE INTERLOCUTORY REVIEW OF A LICENSING BOARD DECISION TO REJECT j
A CONTENTION; AS SUCH, IT REQUIRES AN EXERCISE OF THIS APPEAL BOARD'S DISCRETIONARY POWER OF DIRECTED CERTIFICATION, AND THE NECESSARY SHOWING FOR THE GRANT OF THAT EXTRAORDINARY REMEDY CANNOT BE MADE.
No matter how viewed, the only thing that has taken place is that a Licensing Board has reconsidered an earlier decision to admit a contention and decided upon i
reconsideration that the contention should have been rejected initially.
This is the legal equivalent of the rejection of the contention in the first instance and is not appealmble of I STAYOPPS.SB
5 right unless the rejection also resulted in the dismissal of the party.from the proceeding.
10 CFR 5 2.714a.
This means that the only way'for MAG to invoke this Board's jurisdiction is by way of a petition for directed certification.
If the filing of MAG is not such a filing, this ends the matter.
If the filing does recite that it is-an effort to invoke the directed certification remedy, it still should be denied for the following reasons.
It is settled that directed certification is not favored' on the issue of whether a given contention should have been admitted in a proceeding.
Proiect Manaaement Corp. (Clinch River Breeder Reactor Plant), ALAB-326, 3 NRC 406, reconsideration denied, ALAB-330, 3 NRC 613, reviewed and reversed in part on other arounds sub nom.,
U.S.E.R.D.A.
(Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976).
See also, Public Service Company of Indiana (Marble Hill Generating Station, Units 1 and 2), ALAB-339, 4 NRC 20, 22-23 (1976).
This is all that is presented.
Undoubtedly MAG will argue, however, that because his motion seeks to preserve a motion for reconsideration which he hopes will lead to a further delay in low power testing of Seabrook, he l
will argue that directed certification is warranted.
However, the rule on directed certification is clear:
"Almost without exception in recent times, we have undertaken discretionary f
interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact STAYOPPS.SB
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which, as a practical matter, could not 1
l be alleviated by later appeal or (2)
I affected the basic structure of the l
proceeding in a pervasive or unusual manner."2 I
MAG may argue that he has a valid directed certification motion because the "immediate and irreparable impact" of Seabrook's operation at low power cannot be remedied by later appeal.
However, that is nothing more than the irreparable harm argument that was just rejected by the Commission in Public Service Comonny of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-08, 29 NRC (May 8, 1989), Slip Op.
at 5-11.
Nor can MAG make it under the second test.
This will simply be one more contention rejected, which contention, if the rejection is found to have been erroneous will be litigated at a later time.
This is not something which affects the basic structure of the proceeding.
II.
MAG CANNOT MAKE THE NECESSARY SHOWING FOR A STAY PENDING APPEAL.
In order to obtain a stay, MAG must satisfy the l
provisions of 10 CFR S 2.788 and the test set out in 10 CFR s 2.788(e).
We address each of these factors, beginning with the irreparable harm factor.
As the Commission has again l
2 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977) (footnote omitted).
- Accord, g.g., South Carolina Electric & Gas Co.
4 I
(Virgil C.
Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1162 (1981) ; Houston Lichtina &
Power Co. (South Texas Project, Units 1 and 2),
ALAB-608, 12 NRC 168, 170 (1980). s m orr3.sn 3
1
s recently observed:
"it is incontrovertible that 'the most significant factor in deciding whether to grant a stay request is 'whether the party requesting a stay has shown that it will be irreparably injured unless a stay is granted.'"3 The only irreparable harm which MAG can possibly i
show here is that he has been deprived of a basis for a motion which he hoped would result in stopping the low power testing of Seabrook.
Prescinding from the question of whether the Licensing Board ruling is even to be viewed as the proximate cause of that alleged harm, we repeat that the alleged irreparable harm to MAG from low power testing has already been analyzed by the Commission and found not to be of a nature that satisfies the provisions of 10 CFR S 2.788.
CLI-89-08, suora.
In addition, even if one accepts that MAG can reach from this ruling to the results which flow from the Commission decision to allow low power testing, the only
" harm to other parties" and "public interest" arguments he can make are those which the Commission has already rejected in CLI-89-08, supra, at 27-28.
This leaves the likelihood of success on the merits.
Here the Licensing Board has quite correctly analyzed its jurisdiction as, by definition, precluding consideration of matters which had to be resolved before low power testing.
3 CLI-89-08 at 5, quoting Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984), in turn quoting Westinghouse Electric Corp. (Exports to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980). s m orts.sn
MAG by his motion to the Commission, has now finally admitted i
that the' contention was exactly what the Applicants argued it q
was all along, an attempt to litigate a late filed technical safety contention under the guise of an exercise contention.
By definition, the Licensing Board had no jurisdiction and, therefore, its decision to " expunge" the contention was correct.
CONCLUSION The relief sought chould be denied.
Respectfully submitted, a M/W Thomas C. Df(han, Jr.
George H. Lewald Kathryn A.
Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook William Parker Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Applicants STAYOPPS.SB i
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CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attgyngys36oE11tM Applicants herein, hereby certify that on May 23, 1989, I made service of the within document by depositing copies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in the United'dtases? mail, first class postage paid, addressed to):
Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Thomas S.
Moore Mr. Richard R.
Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S.
Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.
East West Towers Building Bothell, Washington 98021-9796 4350 East West Highway Bethesda, MD 20814 Administrative Judge Ivan W.
H. Joseph Flynn, Esquire Smith, Chairman, Atomic Safety Office of General Counsel and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F.
Cole Gary W. Holmes, Esquire Atomic Safety and Licensing Board Holmes & Ells U.S. Nuclear Regulatory Commission 47 Winnacunnet Road East West Towers Building Hampton, NH 03842 4350 East West Highway Bethesda, MD 20814 Administrative Judge Kenneth A.
Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburypert, MA 01950 Stillwater, OK 74075 1
I m?
th?
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LJohn P.LArnold,JEsquire Robert R. Pierce,' Esquire (Attorney General Atomic Safety and Licensing LGeorge Dana-Bisbee, Esquire:
Board Assistant Attorney General U.S. Nuclear Regulatory Office of_the' Attorney. General Commission 25 Capitol Street
. East West. Towers-BuildingL Concord,.NH 03301-6397; 4350 East West Highway.
Bethesda,' MD' 20814 Sherwin E.; Turk, Esquire Diane Curran, Esquire Office of General Counsel Andrea C..Ferster, Esquire-U.S., Nuclear Regulatory Harmon, Curran & TousleyL Commission-Suite 430 One White Flint North, 15th Fl.
2001 S Street, N.W.
11555 Rockville Pike Washington, DC 20009 Rockville, MD 20852 a
' Adjudicatory File Robert A. Backus, Esquire Atomic Safety and Licensing 116 Lowell Street Board Panel Docket (2 copies)
P.O. Box 516 U.S.-Nuclear Regulatory Manchester, NH 03105 Commission East West Towers' Building 4350. East West Highway Bethesda, MD-20814
- Atomic Safety and Licensing Mr. J. P. Nadeau Appeal Board.
Selectmen's Office U.S.. Nuclear Regulatory 10 Central Road
?
Commission Rye,;NH 03870
, Washington, DC 20555 Philip Ahrens,_ Esquire John Traficonte, Esquire
. Assistant ~ Attorney General Assistant' Attorney General
~
Department.of the Attorney Department of~the Attorney' General.
General Augusta, ME 04333 One Ashburton Place, 19th Flr..
Boston, MA 02108 Paul McEachern, Esquire Mr. Calvin A. Canney Shaines & McEachern City Manager 25 Maplewood Avenue City Hall P.O.
Box 360 126 Daniel Street
.Portsmouth, NH 03801 Portsmouth,-NH 03801
)
Mrs. Sandra Gavutis R. Scott Hill-Whilton, Esquire Chairman, Board of Selectmen Lagoulis, Hill-Whilton &
RFD 1 - Box 1154~
Rotondi Route 107 79 State Street 3
Kensington, NH '03827 Newburyport, MA 01950 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
J
- )
e
- Senator Gorden J. Humphrey
' Leonard Kopelman, Esquire
)
U.S.
Senate Kopelman & Paige, P.C.
j
-Washington, DC ~ 20510 77 Franklin Street
.(Attn:
Tom Burack)
Boston, MA. 02110
~* Senator Gordon J. Humphrey Mr. William S.
Lord One Eagle Square,' Suite 507 Board of Selectmen j
Concord, NH 03301-Town Hall - Friend Street (Attn:~ Herb'Boynton)
-Amesbury, MA 01913 Mr. Thomas F. Powers, III Charles P. Graham, Esquire i
1 Town Manager Murphy and Graham
' Town of'Exeter 33 Low Street 10 Front Street Newburyport, MA- 01950 Exeter, NH 03833 Ashod N. Amirian, Esquire Richard A. Hampe,' Esquire j
145 South Main Street Hampe and McNicholas-P.O.
Box 38 35' Pleasant Street Bradford, MA 01835 Concord, NH 03301 ff M
z 'e
, Jr.
mas'6. Dignan
(*= Ordinary U.S.
First Class Mail.)
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.C' 22171 UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY'AND LICENSING BOARD In the Matter of:
)-
F
)
Docket Nos.
PUBLIC SERVICE COMPANY OF
)-
50-443-OL NEW-RAMPSHIRE, et al.,
)
50-444-OL-
)
OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2)
)
PLANNING EVIDENTIARY HEARING
- Monday, May, 22, 1989 4
Auditorium Thomas P. O'Neill, Jr.
Federal Building 10 Causeway Street Boston, Massachusetts 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 Heritage Reporting Corporation (202) 628-4888
i a-22172 APPEARANCES:
For the Applicant:
THOMAS G. DIGNAN, JR.,
ESQ.
GEORGE H.
LEWALD, ESQ.
KATHRYN A..SELLECK, ESQ..
. JAY BRADFORD SMITH, ESQ.
JEFFREY P.
TROUT, ESQ.
GEOFFREY C. COOK,-ESQ.
Ropes & Gray One International Place Boston, Massachusetts 02110-2624 For the NRC Staff:
SHERWIN E.
TURK, ESQ.
ELAINE I.
CHAN, ESQ.
EDWIN J.
REIS, ESQ.
RICHARD BACHMANN, ESQ.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 For the Federal Emergency Manaaement Acency:
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.
j MATTHEW BROCK, ESQ.
LESLIE B.
GREER, ESQ.
Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, Massachusetts 02108 l
l Heritage Reporting Corporation (202) 628-4888
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- ,5 re; 22173 APPEARANCES
(Continued) i For the State'of New Hampshire:
GEOFFREY'M. HUNTINGTON, ASST. ATTY. GEN.
State of New Hampshire ~
25 Capitol Street Concord, New Hampshire 03301 For the Seacoast Anti-Pollution Leacue:
ROBERT A.
BACKUS, ESQ.
Backus, Meyer & Solomon 116 Lowell Street P.O. Box 516
. Manchester, New Hampshire 03105 JANE DOUGHTY, Director Seacoast Anti-Pollution League 5 Market StreetL Portsmouth, New Hampshire 03801 For the-Town of Amesbury:
BARBARA J.
SAINT ANDRE, ESQ.
Kopelman'and Paige, P.C.
77 Franklin' Street Boston, Massachusetts WILLIAM LORD Town Hall Amesbury, Massachusetts 10913 For the City of Haverhill and Town of Merrimac:
4 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 Heritage Reporting Corporation (202) 628-4888
a.
.y v.
,:a -
22174 U-I APPEARANCES:
(Continued).
' For' the Town of Newburv:
,j
.q
- 7.,
R.. SCOTT HILL-WHILTON,.ESQ..
1
. Lagoulis, Clark, Hill-Whilton & McGuire-
]"
79 State ~ Street Newburyport, Massachusetts 01950
/>
FEr t'he Town of Salisbury:
. CHARLES P.. GRAHAM, ESQ.
Murphy and Graham 33 Low Street
Newburyport,-Massachusetts 01950 For the Town of West Newbury:
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 Heritage Reporting Corporation (202) 628-4888
)
_--------__.__m.
- .o 22175 1HEEE WITNESSES:
DIRECT ' CROSS REDIRECT RECROSE EYM Witness:
-Richard W.-Donovan-by Mr. - Traficonte (Continued)
' EXHIBITS:
IDENT.-
REC.
REJ.
DESCRIPTION:
(No exhibits)
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22176 J. E E E X INSERTS:
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-EEQGEED1EG&
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 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 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.
15 JUDGE SMITH:
There was some thought among us that but that~was 16 you wanted to have a ruling this afternoon, 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.
l 21 JUDGE SMITH:
Yes, I see.
l 22 MR. BROCK:
I don't know what Mr. Dignan's 23 pleasure is.
24 JUDGE SMITH:
All right.
It seems to me that the 25 matter is ripe for ruling on the papers.
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MR. BROCK:
Fine, Your Honor.
I would agree with 2
that..
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 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.
Heritage Reporting Corporation (202) 628-4888
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And I argued to this Board at that time that if they were
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2 going to raise a flaw in the METPAC model, they should have l
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-10 power license.
11 I cannot believe the Board meant to do that, and 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 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 Heritage Reporting Corporation (202) 628-4888 1
22180 1
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 I faxed copies of the motion to Applicants, the 4
a.m.
5 Commission, and I believe the NRC Staff.
6 I' wanted to distribute it to the Board for only one purpose which was that we make representations in this 7
8 pleading to the Commission for a renewed motion for a stay.
9 We make representations cor.cerning 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 informatic al only.
We had no
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l 19 other purpose in providing the Board with a copy.
I 20 JUDGE SMITH:
So, Mr. Dignan, you are asking for 21 a --
22 HR. DIGNAN:
Clarification of the finding.
j
-- clarification of the scope of the
{
23 JUDGE SMITH:
l 24 contention, and your reason for doing it so late is?
25 MR. DIGNAN:
Because I was just handed this and Heritage Reporting Corporation (202) 628-4888 w_-___-___
22181
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1 told for the first time -- well, they as much as admit they 2
thought this went up last night to try to stop the low-power 3
license.
And what I would like from this Board is a 4-clarification that this Board had no intention by any-ruling 5
6 it made to take an ensite 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, 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.
14 In other words, the model was bad if it didn't 15 have it.
But you in your ruling said the flaw was 10 discovered in the exercise.
It was in the context of an 17 exercise contention, and this is now being twisted to say to 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.
But what I don't need up there with this license 25 heritage Reporting Corporation (202) 628-4888
M 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 24 characterize the intent of this Board when it admitted MAG 25 Exercise Contention 19.
(
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1 I think the document is quite clear.
I think the i
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 5
say you admitted.
1 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 24 status, assessment of meteorology or anything else arriving 25 to the formulation of the onsite determination of what the i
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0 22184 q
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 d
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 chance 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 This has been 20 gasp effort to stop the low-power license.
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 suspend the hearings now and let the Board take a look at 25 Heritage Reporting Corporation (202) 628-4888
22185 1
the decisions and so forth now and tell me what I've got or 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 4
in a context where I've got to crank that response probably 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 rejected so far since I have been the Chairman of the Board, 10 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 --
I 24 MR. DIGNAN:
And I've got that with me.
I've ge'.
25 the decision in which you made the ruling, if that would Heritage Reporting Corporation (202) 628-4888 z__ _
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' I assist the Board.
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 our motion, which contains Exercise Contention 19, I failed 15 te 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?
f i t' 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.
in A it says," Described in detail 22 MR. DIGNAN:
l l
in MAG EX-19", which you meant was 11.
23 24 MR. TRAFICONTE:
You are right.
25 MR. DIGNAN:
Yes.
Heritage Reporting Corporation (202) 628-4888 t
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22187 MR'.lTRAFICONTE:
But in any event, what should 1
2 have occurred here is that we should have struck on the 3
~second page of the exhibit all.of Paragraph C which the 4
Board did not admit.
.l 5
I believe the Board admitted for litigation the 6
contention supported by-Bases Statements A, B and D.-
I'm l
7' completely at'the convenience of.the Board.
If you want to
' i 8
take a' break and read the motion.
9 JUDGE SMITH:
I think tairness calls for that, Mr.
~
10 Traficonte.
11 I might say that I'm sitting here very much-12 surprised.that anybody interpreted anything'that.we did in L
13 the light of what I understand the purpose of your motion 14~
is.
And I'm surprised.
I have my own~ intellectual-15 curiosity as how you arrived at that point.
16 MR. TRAFICONTE:
Let me say, perhaps it's best if 17 weado break at least to give Your Honors an opportunity to 18 read this motion.
and I want to reiterate this, this 19 As I say, 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 23 pointless, because we could never ever on our own or even by 24 agreement of the parties extend our jurisdiction beyond 25 matters that --
Heritage Reporting Corporation (202) 628-4888
22188
.1 MR. TRAFICONTE:
Perhaps we ought to break and 2
give the Board an opportunity to read this.
The short answer is that there is an issue, which 3
we believe we have identified, which runs to both the 4
issuance of a full-power license and a low-power license.
5 6
It is aut offsite issue.
It was appropriately brought to the i
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.
But I'm at the convenience of the Board.
13 14 JUDGE SMITH:
Let's break.
15 MR. TRAFICONTE:
Sure.
16 (Whereupon, a recess was taken.)
I 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation
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JUDGE SMITH:
I think the Board is ready.
2 Actually in this case, let me make it clear, I'm 3
not speaking for the Board in everything I say.
I'm speaking for the Board as it was constituted when the 4
5 determination was made to accept these contentions.
6 And in so doing I am very much mindful of the fact 7
that we discussed privileges many times with respect to 8
attorney / client and deliberative process.
And one of the privileges t..at is probably the most invaluable of all is 9
the judicial process privilege and that is how judges arrive 10 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 14 don't discuss my memory of events and how the Board arrived 15 at the printed language which is here.
Let us probe 16 somewhat just how we arrived at what the printed language ought to be what you go by, but there has been an injustice.
17 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 Licencing 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.
l 24 I mean, the requirements that a licensee or an applicant fir 25 a license must meet before they are issued a low-power Heritage Reporting Corporation (202) 628-4888 l
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22190
~
1 versus a full-power.
2 In this instance, offsite communication, sirens, 3
which was purely a.
offsite consideration, was at the time 4
two Boards were crested, a low-power consideration.
So that jurisdiction, even though it was given to 5
6 offsite, was given to the onsite Board.
And I raise that to point out that the jurisdictional split was not functionally 7
what had to be done onsite or what had to be done offsite.
8 9
The jurisdictional split was the requirements for low-power license vis-a-vis the requirements for full-power license.
10 And the term Onsite and Offsite Licensing Boards merely 11 12 became a convenient designation, because most of the requirements for a low-power licensing were indeed 13 I
14 physically and institutionally onsite requirements.
15 In looking at what is onsite and offsite after 16 that.
When contentions came before us, we did not look at contentions with the issue in mind as to whether they fell 17 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 by licensee personnel on the site would fall into the 21 22 category of the other Board, the Onsite Board or the so-23 called Low-power Board.
And we thought we had pretty well identified the 24 issue of sirens and offsite notification as being the sole 25 Heritage Reporting Corporation (202) 628-4888
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22191-V.
1 exception. LSo the matter wasn't really very much in mind as
+.
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 51 saying.
That there was concurrent jurisdiction lbetween 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 J,
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 14 we could not and should not take jurisdiction over the so-15 called low-power issues.
16 And that split jurisdiction or concurrent jurisdiction is generally not favored in the judicial 17 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.
And as a matter of practice where I was confused 23 24 about it, I would consult with Judge Wolfe and consult with 25 Judge Cotter who is the Chairman of the Atomic Safety and Heritage Reporting Corporation (202) 628-4888
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 21 telephone conversation about the METPAC Code.
This was 22 early in discovery.
And it was called for and I believe Ms.
but 23 Selleck -- I forget who was representing the Intervenor, 24 I know that Mr. Traficonte was representing the Attorney 25 General -- but I think Ms. Selleck was representing the l
I Heritage Reporting Corporation
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22193 1
Intervenor and came up with a demand for the METPAC Code.
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 5
aspects.
But overriding that consideration was the basic L
6 thought.
7 We knew we had jurisdiction on how well the New 4
8 Hampshire Yankee ORO acted in the SPMC in acting for the And the issue that we saw coming up, an issue 9
governor.
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 information 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 specific transcript.
I've got the transcript here.
25 JUDGE SMITH:
I have no idea what we said.
Heritage Reporting Corporation (202) 628-4888
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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 7
bear in mind that our attitude at that time was, we.want 8
once and for all this hearing to go ahead and we want very 9
liberal discovery on this issue.
10 MR. DIGNAN:
I understand.
11 And Mr. Fierce, in fact --
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 pa, 15,667.
Your Honor 17 made this statement:
"That you are seeking the model now, for the reasons stated in your contention for the basis 18 not 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 j
25 has fundamental flaws that cause it to fail to take into I
Heritage Reporting Corporation (202) 628-4888
-__-_-________-__-____-_a
22195 proper account all known facts as well as existing 1
2 uncertainties in the generation of PARS."
3 Judge Smith:
"Dut 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 the 7
people who were using the model in order to project PARS.
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 saves l
l 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 24 the METPAC model as being made available.
And the product 25 of it, I should emphasize, as being made available, so that Heritage Reporting Corporation (202) 628-4888 l
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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 plant status or.the correct interpretation of meteorological 5
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.
10 Now as we begin, I'm going from the perspective 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 Yankes offsite response organization.
If I had to do it over again,.I don't believe that 14 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 upon plant status and everything else was clearly onsite; 19 20 that we were testing the capacity to communicate.
And then with respect to the New Hampshire Yankee 21 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
~
Beritage Reporting Corporation (202) 628-4888 i
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22197 1
background'and the reasons why we gave it, rightly or wrongly, we viewed that as something that did not address 2
arriving at the correct protective action recommendation 3
4 onsite, but. addressed how was that accurately communicated.
5 Again, the second part of the contention 6
emphasizes the offsite aspect of it.
And we did not' focus on any onsite protective action recommendation aspects of 7
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 utilized information and decisions which were made onsite 11 12 communicated.
And in my mind at that time it was, how well 13 they acted for the State of Massachusetts and others 14 offsite.
I want to point out again we were brought into 15 16 reflection on Basis A of Exercise 19.
We were' brought into the context of MAG Exercise Contention 11, which wns purely 17 18 how well did the ORO function for the governor, which is 19 purely offsite.
But so it goes all the way down until we get to 20 21 Basis D.
22 (The Board confers. )
23 24 25 Heritage Reporting Corporation l
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JUDGE SMITH:
(Continued)
Judge McCollom pointed 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.
j 7
Dignan pointed out, that was not the purpose.
But even so, 8
we accepted what seems to be an onsite PAR decisionmaking 9
process 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 emphasized 25 the ALAB-903 aspects of it and didn't discuss at all -- in deritage Reporting Corporation (202) 628-4888
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22199 l
1 fact at no place in Basis D did we discuss whether we 2
believed it to be action by licensee onsite personnel or an l
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.
"The issue of the METPAC computer model could not 7
l l
8 have been raised earlier in that it alleges fundamental 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 14 that it is a minor consideration, and both elements are 15 important.
That was the mental lapse.
16 (P ause. )
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.
Heritage Reporting Corporation (202) 628-4888
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1 In Commission practice, we absolutely do not have l
2 any jurisdiction one iota, as the Commissioners frequently 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 j
i 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 i
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.
I 13 Nothing has ever happened to change that.
14 To any extent that we have admitted contentions 15 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 (202) 628-4888 l
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It can be later or any time.
We can't even administer the 2
oath 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.
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 D7 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 Heritage Reporting Corporation (202) 628-4888
i 22202
'l-rule --
2 MR. DIGNAN:
Can I view that as a ruling of the 3
Board?
4 JUDGE SMITH:
Well, wait a minute. 'Let's hear
-l 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 Firstlof all, it ils 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:
Offsite aspects of all emergency So that means 25 plans being tested in the June 1988 exercise.
l Heritage Reporting Corporation (202) 628-4888
22203 it had jurisdiction'over the offsite aspects of the onsite 1
2 Seabrook Station radiological emergency response plan, the 3
3 SPMC as it was exercised, an'd the NHRERP for New Hampshire 4
as it was exercised.
i 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.
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.
I 12 JUDGE SMITH:
" full power" or " low power".
13 Offsite.
14 MR. TRAFICONTE:
I believe you had jurisdiction over the offsite aspects.and that you had jurisdiction over 15 not over 16 and have jurisdiction over the full power license, 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 of jurisdiction over low power which could have been joint 22 23' jurisdiction with the low-power board?
24 MR. TRAFICONTE:
I believe that in the recent rulemaking, the copy of which I have made available -- and 25 Heritage Reporting Corporation (202) 628-4888 f
22204 1
I'm talking about the amendments to 50.47 (D) that were set forth in the Federal Register at 53 Federal Register 36955 i
3 to 36960.
I believe the Commission made clear that before 4
they will issue a low power license there are certain 5
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 Commission defines that requirement as an offsite aspect of 13 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 re quirement, which is now 50.47 (D) (5), that there is an 24 offsite aspect and it will not be --
25 JUDGE SMITH:
What is that offsite aspect?
Heritage Reporting Corporation (202) 628-4888
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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 j
6 the rulemaking, in fact in the new rule the Commission 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.
"The NRC will base this finding on its assessment 10 11 of the Applicants' onsite emergency plans against the 12 pertinent standards in Paragraph (B) of this section and 13 Appendix E.
Review of Applicants emergency plans will include the following standards with offsite aspects."
14
.The onsite plan will be reviewed in certain 15 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.
guess the OSHA might have some other consideration, too.
20.
21 But as far as we have jurisdiction, there are two things --
generating electricity and everything else - is to avoid 22 23 offsite consequences.
I 24 MR. TRAFICONTE:
Well, specifically what I --
25 JUDGE SMITH:
That at least is my view as I read Heritage Reporting Corporation (202) 628-4888 1
22206 1
it.
But I would like to have you address that.
2 MR. TRAFICONTE:
Yes.
3 JUDGE SMITH:
That's why I am asking.
4 MR. TRAFICONTE:
Well, let me come at it this way.
5 I believe that this, what is now (D) (5) -- and if 6
the Board would direct its attention, it's identical 7
essentially to (B) (9), it is a requirement of the onsite That's a 8
plan that this offsite aspect be adequate.
9 requirement for a low-power license.
It is also material and relevant to the issuance of a full-power license.
10 That's to say that when we filed the contention, 11 12 EX-19, which clearly sets forth in the contention statement 13 that it was a challenge to the onsite Seabrook Station plan and their capacity to use the data effectively in assessing 14 15 of fsite consequences, we made a challenge to (B) (9).
And by 16 indirection we made a challenge to the new (D) (5).
We claimed that there was an offsite aspect of the 17 l
i 18 onsite plan that was not adequate.
That issue runs to the l
19 full power license.
It's an offsite issue and it runs to 20 the full-power license.
So this Board has jurisdiction over f
21 it.
That's why the Board took the jurisdiction and I think f
22 it was perfectly appropriate.
By this rulemaking, what the Commission is stating 23 24 is that an issue that is material and relevant to the full-power license is at the same time material and relevant to 25 Heritage Reporting Corporation l
(202) 628-4888 l
c___-
22207 1
the low power license.
That doesn't impact on this Board's L-2-
jurisdiction at all.
3 If the Board appropriately had jurisdiction over 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 14 METPAC; precisely what the contention says.
We have 15 explored it.
The NRC Staff has filed testimony in the case 16 on it, os 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 Heritage Reporting Corporation (202) 628-4888
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 I
5 statement that in some fashion the issue that's been 6
admitted and is being litigated is now running ts the low-4 l
7 power license.
That's a fact.
Yes, I believe cae issue 8
does, and I acknowledge that it was enly 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.
And just because it is clear that it is also material to a 18 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 motic., an oral motion at this 23 juncture in this posture today on tc.e record, and grant Mr.
Dignan's motion to dismiss Basis D of Exercise Contention 24 25 19, we would request the following relief immediately.
Heritage Reporting Corporation (202) 628-4888
22209 We would request that the hearings be suspended 1
2 today.
We would request that the Board immediately certify 3
the question to the Appaal 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 telephonically contact the Appeal Board so that review could 6
7 lie.
8 Because, frankly, if the Foard is inclined to 9
grant Mr. D!.gnan's motion orally as it's been argued before and these are fairly complex jurisdictional matters, I 10
- you, 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 14 Commission seeking a housekeeping stay.
And the Board's 15 action would have, in my view, it would, first of all, be an and it would also have potentially dramatic 16
- error, 17 consequences on the issuance of that license.
18 And we would plead with the Board to give us the opportunity to have this jurisdictional matter put before
[
19 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 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 1
L-________________________________________
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.
Dignan indicating that it may run to the low-power license, 7
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.
The reason I am urging this on you is because Mr.
12 13 Traficonte very cleverly now says, oh, this is just an You 14 offsite aspect and it has nothing to do with low power.
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.
I 19 AG.
The Applicants and the NRC Staff specifically 20 addressing the adequacy of the accident assessment, dose projection methodology in use onsite as part of the 21 22 Applicants' onsite plan.
No licensing Board decision on 23 this contention has been reached."
The whole basis of his motion is that pending 24 25 before you is an issue that goes to onsite and you haven't Heritage Reporting Corporation (202) 628-4888
E-
.a p
22211 1
reached a decision, and therefore the low-power license is 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 J
6 reconsideration dismiss this contention out'of the offsite 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 that what the Commission is saying in this entire regulation is that the question of the low-power license is 11 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 is an examination of the plan, not the 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 (202) 628-4888
l 1
1 22212 1
1
'a concession.
I am stating as clearly as I'can the fact 1
L-2 that'we have an issue that is a full power 'ssue.
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 pcaer 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.
22 MR. DIGNAN:
And that's all that that regulation 23 says.
24 MR. TRAFICONTE:
Your Honor.
25 MR. DIGNAN:
And by definition when low power Heritage Reporting Corporation (202) 628-4888
l 1
l 22213-
'1 issues, that' aspect is resolved.- And this,.with all-due L i.*'
.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 13 14 15-16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
22214 l
JUDGE SMITH:.You said again this is a low-power-l; 11 3
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
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 10
-consideration.
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."-
And one of the ones he keeps directing your 21 22_
attention to is the number five one which says:
" Adequate 23 methods, systems and equipment for assessing and monitoring actual or potential offsite consequences of a radiological 24 25 emergency condition in use onsite."
Heritage Reporting Corporation (202) 628-4888
)
22215 And I view that as something that is done onsite, I
1 2
the assessment and so forth and so on.
They're saying it 4
3 has an aspect of offsite, the aspect being that what you're i
1 doing there is assessing what's going to happen off the 4
5 site.
6 JUDGE SMITH:
Right.
7 MR. DIGNAN:
And that's all they're saying.
8 JUDGE SMITH:
Which is everything.
9 MR. DIGNAN:
Exactly.
10 JUDGE SMITH:
There is no aspect of emergency planning which does not somehow have an offsite aspect.
11 12 MR. DIGNAN:
That's correct.
13 JUDGE SMifH:
Except for the possibility parts of 14 it might relate to plant personnel.
15 MR. DIGNAN:
That's correct.
l 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 I
expressly identified in this new rule that there are certain 19 l
20 offsite aspects of the onsite plan that are material and l
21 relevant to the issuance of a low-power license, in addition 22 to being relevant to the issuance of a full-power.
l 23 JUDGE SMITH:
Where do they say that's relevant to l
24 the issuance of a full-power?
25 MR. TRAFICONTE:
I would direct your attention Beritage 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 i
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.
12 And specifically, with regard to the discussion we 13 are having today, at B-9 -- and again, I'm talking about 14 50.47 -- at B-9 it says: " Adequate methods, systems, and 15 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, l
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.
Heritage Reporting Corporation (202) 628-4888
a:
'22217, p-1 MR. TRAFICONTE:
Except that B-9 refers'not only 1
2
~toTthe.onsite' plan but also to the State of New Hampshire 3'
and, in this instance, ORO's accident assessment and 4
' monitoring capabilities.
1 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.
I don't-know what is to be gained by arguing with 10 The Board has pretty well decided that the 11 us anymore.
1:2 activities of the personnel at the facility relating to 13 accident assessment and the projection of potential offsite
-14 consequences is onsite, and_is something that has to be 15-done.
It has not been a part of our jurisdiction in that 16 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 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.
24 We never saw a jurisdictional void.
But we never 25 saw concurrent jurisdiction This is the Commission's I
Heritage Reporting Corporation (202) 628-4888
~
22218 11 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 problem is as complicated
-5 as you're making it.
6 MF TRAFICONTE:
Well, it may not be as complicated as I'm making, but I believe the Board is 7
8 committing an error by striking this contention at this 9
point.
4 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-or within the rubric of the low-power considerations you're 15 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 (202) 628-4888
-________a
22219 j'.
1 JUDGE SMITH:
Fundamentally we didn't do it 2
because we can't~do it.
We are infallible; we never exceed 3
our jurisdiction because we cannot.
4 MR. TRAFICONTE:
Would the Board entertain the 5
following request: that'it not grant the motion to strike 6
this basis and this contention, but instead simply affirm 7
its December 15 Memorandum and Order with regard to the 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 12 question either.
13 MR. TRAFICONTE:
Your Honor --
14 MR. DIGNAN:
Your Honor, first of all --
15 MR. TRAFICONTE:
-- let me be heard, it is my 16 motion for certification.
i 17 MR. DIGNAN:
No, it's my motion that you are 18 talking and describing inaccurately.
19 JUDGE SMITH:
Off the record.
20 (Discussion off the record.)
21 JUDGE SMITH:
Now say it again.
]
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 ruling admitting the contention and 25 that particular basis of the contention to wit, 19 (D) and Heritage Reporting Corporation (202) 628-4888
- - - -___ __-__-_________-__--_________- __ _ _ _ __- _ a
l 22220 l
.L 1-ask the Board to reconsider-that ruling and vacate it and 2
declare it not admitted.
3 It is not a motion to strike, that's my point.
~4 MR. TRAFICONTE:
Your Honor, again, two points: if 5
it's going to be in that form I would request an 6
opportunity, at least, to file some written submission in 7
response.
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 cr.nplex 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 grounds for a 21-stay.
I don't think a low power license will or should 22 issue becauc' 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 (202) 628-4888
22221 1
MR. TRAFICONTE:
Well, I'm.not so sure you are, 2
Your Honor.
Mr. Dignan in reading my motion has come in 3
here today in an extraordinary procedure, orally moved that 1
4 the Board strike the issues that we have used as the basis i
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 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 dismics 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.
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.
Heritage Reporting Corporation (202) 628-4888 l
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 l
11 that issue.
I 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, I understand what Your Honor has said about if 16 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.
The indications are that you intend to do it today 22 23 and you intend to do it on the record here.
I want to lay 1
out for you carefully as I can the real world effects that 24 25 will flow from the decision.
There are going to be real Heritage Reporting Corporation (202) 628-4888 1
w---_-----_
a
22223 1
'world effects flowing from the decision.
2 JUDGE SMITH:
I' ll warn you, Mr. Traficonte, I i
3 question whether we can even take those into account.
4 MR.'TRAFICONTE:
Well, if the Board can defer 5
until some later point or defer until -- in fact, never do 6
-it at all since it's a jurisdictional matter, the Board could weigh in its considerations as to whether to make this 7
7 ruling from the bench today, the Board could weigh the real 8
9 world impact that this ruling 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.
Now'we do want to recognize that a resolution 13 14 given the significance of the issue right or wrong can 15 create an injustice right or wrong if we don't decide now.
it can create an injustice on your part if we don't 16 I mean, 17 decide promptly as to jurisdiction, 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 it before us and you sought a ruling today and you got it on
'20 21 jurisdiction.
l 22 With respect to the moment in which we expunge --
23-I don't know what word you would like for me to use, l
24
" expunge", is that a nice one?
-- the contention from the 25 litigation.
We're not going to try to give either side a i
Heritage Reporting Corporation (202) 628-4888 l'
l
22224 1
manipulative, unimportant, nonsubstantive tool to argue 2
before any tribunal.
3 All we're doing is running our case'the way it' 4
should be run.
We timed our decision and we timed the 15 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 persuaded by Mr. Dignan that you should move and act today 11 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 done 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 I
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.
Heritage Reporting Corporation (202) 628-4888 p
t_ _ __._____ _____._________________ _ _ _ _ _ _ _
[..
22225 41 1
MR. TRAFICONTE:
Before the Commission, Your 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.
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 MR. TRAFICONTE:
Your Honor,.with all due respect, 19 the prejudice is very simple. I would want to get to a phone 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 --
Heritage Reporting Corporation (202) 628-4888
3 i
22226 1
JUDGE SMITH:
Well, how much time do you want?
2 MR '. TRAFICONTE:
I would like to at least-remove 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 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.
The real world effect is going to be the 15 elimination of'an issue that a Licensing Board has admitted.
1-6 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 you intend to make of it.
22 MR. TRAFICONTE:
It's hardly an extraneous use, if the issue that is open and being litigated is 23 Your Honor, material and relevant to a low-power license being issued.
24 25 That's not an extraneous use.
Heritage Reporting Corporation (202) 628-4888 l~
i 1
22227 1
JUDGE SMITH:
If it is relevant, as you argue, if l
2 it is also relevant to a full power license, your remedy is l
3 on appeal.
As you know, the acceptance or rejection of a l
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 do anything that impacts upon the considerations of the 11 12 Commission and the Court on their low-power consideration 13 except decide those matters timely.
14 The dismissal or nondismissal, the expunging or nonexpunging of that contention is strictly a matter within 15 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 Heritage Reporting Corporation (202) 628-4888 l
g
22228 i
1 before us. That's.just the way it is.
2 Now what-do you want?
Do you want a half hour?
3~
We've.got to get on with Mr'. Donovan.
4' MR. TRAFICONTE:
It just so happens, I mean I.
5 certainly 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 I' 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.
16 Can we break for 20 minutes?
17 JUDGE SMITH:
I'll give you half an hour. You 18 could work up to there.
19 MR. TRAFICONTE:
Can we break for half an hour?
20 JUDGE SMITH:
Certainly.
And when you come back j
21 we'll see what's happening.
We'll break until quarter to l
22 4:00.
23 MR. DIGNAN:
Mr. Traficonte --
l 24 JUDGE SMITH:
Now, did anybody object to breaking?
25 MR. DIGNAN:
No, I don't object to breaking.
Heritage Reporting Corporation (202) 628-4888
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22229 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 JUDGE 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 making the call ex parte finding out if there's an Appeal 11 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 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' MR. TRAFICONTE:
To stay the ruling and to review 19 it.
20 JUDGE SMITH:
And just see if what you' 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 wa could find that out.
Heritage Reporting Corporation (202) 628-4888
22230
'~
l 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.
Are they there to hear a motion that the Attorney General 7
wants to make and deems important enough to make orally this 8
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 see what the report is.
14 MR. TRAFICONTE:
Yes.
15 JUDGE SMITH:
In the meantime you can be working 16 on your problem.
17 MR. TRAFICONTE:
Yes.
18 Thank you.
19 (Whereupon, a recess was taken.)
20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 i
j N..,,
22231 l
1634-635 BOEJ JUDGE SMITH:
Gentlemen, Mr. Dignan wants to go 2
back on the record for a moment.
l l
3 MR. DIGNAN:
Your Honor, the reason I wish to go
)
4 back on the record was just to put something on the public I
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 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 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 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 (202) 628-4888
e 22232 1
are seeking, nothing else right now.
2 MR. TRAFICONTE:
I'm not sure I understand the -
3 distinction between the two.
What we were seoking was to have the Appeal Board 4
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 f
8 act as we regard it of dismissing the contention, or the general rationale of jurisdiction leading to that result?
9 4
10 MR. TRAFICONTE:
Well, perhaps the reason why I can't fit myself into the question perhaps with an answer is 11 12 I don't believe it's an administerial act.
But I understand 13 the Board does.
14 JUDGE SMITH:
Well, assuming that you agreed'there 15 was no issue as to our decision on jurisdiction, then there 16 is nothing left by the contention.
Would that then be an administerial act?
17 18 MR. TRAFICONTE:
Could you put that to me again?
19 JUDGE SMITH:
What if everybody agreed we do not or did 20 now have jurisdiction over Basis D of Contention 19, 21 we ever, if everybody agreed with that.
22 MR. TRAFICONTE:
And we agreed with that, yes.
I 23 see.
24 JUDGE SMITH:
And if you agreed with that, then 25 you wouldn't --
Heritage Reporting Corporation (202) 628-4888 4
L f
22233-i-
1 MR. TRAFICONTE:
Oh, I see.
1 2
JUDGE' SMITH:
Then the only thing left would be.
3 the bookkeeping act of throwing the contention out.
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:
-- of 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 14 the administerial act that comes out in the end.
JUDGE SMITH:
And the consequences of it.
15 16 MR. TRAFICONTE:
And the administerial 17 consequences.
18 JUDGE SMITH:
Right.
So then there is no really neutral thing'that I 19 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.
24 (Discussion off the record. )
25 (Whereupon, a recess was taken.)
Heritage Reporting Corporation (202) 628-4888
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22234 1
JUDGE SMITH:
Back on the record.
2 Mr. Traficonte'is going to proceed with his cross-3 examination because'the chairman of the Appeal Board was not 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 today.
21 The document which Mr. Traficonte brought to our 22 attention on Friday was a work product from a contract with i
23 Theodore Barry & Associates.
It was a second of three tasks l
l 24 which TBA was to accomplish.
It included recommendations as I
25 a result of the first task which was interviews with people Heritage Reporting Corporation (202) 628-4888
c 22235 1.
in the REP program, the radiological emergency preparedness 2
program.
There was a third task which was the production of 3
4 a manual, an exercise program manual.
Actually, there was 5
to be worked on proposed guidance memoranda, but the product 6
that I wanted to focus on is the exercise program manual.
7-Now, I have with me today the manual that was prepared by Theodore Barry & Associates under the third task 8
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 12 page, and all it says is, " Document control and retrieval 13 (To be developed by FEMA). "
That is the' entire implementation of the recommendation that found its way into 14 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 Emergency Management Agency had proposed to the National Archives and 19 20 Record Service a document control schedule.
The final 21 approval from NARS was received on September 19, 1988.
That document is attached to the affidavit in its entirety.
22 23 Now a two-page portion of it, which is referred to 24 in the affidavit, deals with the documents of the type that 25 are at issue here.
I have attached the entire schedule Heritage Reporting Corporation (202) 628-4888
_ _ = _ _ _ _
g
,._,1 l
U 22236 simply:for completeness so tnat'there would be no question
- 1.
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 atL 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 say overnignc, but perhaps overnight to take a look at this 18
- 19 in a little bit more detail.
20 JUDGE SMITH:
All right.
This was on the record.
21 Whereupon, 22 RICHARD W.
DONOVAN having been previously duly sworn, was recalled as a witness 23 24' herein and was examined and testified further as follows:
25 Beritage Reporting Corporation (202) 628-4888