ML20247N803
| ML20247N803 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/01/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8725 ASLBP, OL, NUDOCS 8906060032 | |
| Download: ML20247N803 (276) | |
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UNITED STATES O NUCLEAR REGULATORY COMMISSION m, y' A v ,
3, (\ h ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING EVIDENTIARY HEARING
,o O
Pages: 23547 through 23820 Place: Boston, Massachusetts Date: June 1, 1989
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I 6j(,$6 # HERITAGE REPORTING CORPORATION
, (2 0 OMReporters 1229 L Strwt, N.W., Suke 600 f
WasMagton, D.C. 20005
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23547
~ UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
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Nm/ .
In the Matter of: )
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING EVIDENTIARY HEARING Thursday, June 1, 1989 l Auditorium l
Thomas P. O'Neill, Jr.
Federal Building 10 Causeway Street Boston, Massachusetts The above-entitled matter came on for hearing,
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'- pursuant to notice, at 9:04 a.m.
BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN i
I Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission f'
Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Weshington, 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 gg (202) 628-4888
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' APPEARANCES:
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. /'- For the Apolicants:
THOMAS G. DIGNAN, JR., ESQ.
GEORGE H. LEWALD, ESQ.
KATHRYN-A. SELLECK, ESQ.
JAY BFADFORD 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 Emeroency Manaaement Acency:
. / H. JOSEPH FLYNN, ESQ.
LINDA HUBER McPHETERS, ESQ.
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' Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 For the Commonwealth of Massachusetts:
JAMES M. SHANNON, ATTY. GEN..
JOHN C. TRAFICONTE, ASST. ATTY. GEN.
ALLAN R. FIERCE, ASST. ATTY. GEN.
PAMELA TALBOT, ASST. ATTY. GEN.
MATTHEW BROCK, ESQ.
. LESLIE B. GREER, ESQ.
Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, Massachusetts 02108 Heritage Reporting Corporation
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23549 APPEARANCES: (Continued) i / \
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s_/ For the State of New Hampshire:
GEOFFREY M. HUNTINGTON, ASST. ATTY. GEN. ]
State of New Hampshire l 25 Capitol Street Concord, New Hampshire 03301 For the Seacoast Anti-Pollution Leaaue:
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 Street Portsmouth, New Harpshire 03801 For the Town of Amesburv:
BARBARA J. SAINT ANDRE, ESQ.
Kopelman and Paige, P.C.
[~N 77 Franklin Street
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WILLIAM LORD Town Hall Amesbury, Massachusetts 10913 For the City of Ha'erhill and Town of Merrimac:
ASHOD N. AMIRIAN, ESQ.
P. O. Box 38 Bradford, Massachusetts 01835 For the City of Newburyport:
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 (Ns_ -)
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APPEARANCES: - (Continued) g . ,% . ,
,/ L For the Town of Newburv:
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%sY~ ~l R. SCOTT HILL-WHILTON, ESQ.
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Lagoulis, Clark, Hill-Whilton & McGuire i
.79 State Street Newburyport', Massachusetts 01950 For the Town of Salisburv:
CHARLES P. GRAHAM, ESQ. .,
Murphy and Graham' 33 Low Street Newburyport, Massachusetts 01950 I
For the Town of West Newbury: l JUDITH.H.~MIZNER,.ESQ.
Second Floor 79 State Street ;
Newburyport, Massachusetts' 01950 i l
l For the Atomic Safety and Licensina Board:
. / ROBERT R. PIERCE, ESQUIRE Atomic Safety and Licensing Board l
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U.S. Nuclear Regulatory Commission- {
Washington, D.C. 20555 l
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. - s-WITNESSES: DIRECT CROSS REDIRECT RECROSS EXAM I
Panel No. 21:
Catherine M. Frank Anthony M. Callendrello John G.. Robinson by Mr..; Fierce 23593 IDENT. RE C... . REJ, DESCRIPTION:
EXHIBI_T_S:
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Massachusetts Attorney General:
23613 23614 Massachusetts Attorney 109 General's Answers to i
NRC Staff's Third Set i- of Interrogatories and
- j. Request for Production of documents t-..
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23553 1 EBQQEEQlHGH 2 JUDGE SMITH: Good morning.
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\j 3 Is there any preliminary business?
4 MR. DIGNAN: Yes, Your Honor.
5 I had indicated yesterday to the Board that the 6 schedule was looking like criticality sometime Monday, and 7 my understanding now is that the best judgment of the 8 engineers is the reactor will go critical either late 9 Tuesday or early Wednesday.
10 JUDGE SMITH: We have scheduled arguments on a 11 portion of the Massachusetts Attorney General's motion to 12 hold open the record pending low power testing and onsite 13 exercise, limited to the issue of whether they are entitled l 14 to have observers present during the low power ascension l
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15 currently going on.
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16 MR. TRAFICONTE: Thank you, Your Honor.
17 JUDGE SMITH: I guess it doesn't matter who 18 proceeds.
19 You have not carried the day in your written f
i 20 motion. I think you are going to have to come up with d 21 something in addition. As we indicated last night we wanted I
l 22 to be informed as to where under the rules of discovery we 23 have authority to grant your relief.
24 MR. TRAFICOMTE: Yes, that's what I was prepared 25 to present.
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23554 1 First of all, thank you for scheduling this on an 2 expedited basis, I do appreciate that.
3 In order to lay out as clearly as I can why I 4 believe we have a right to some form of access and 5 observational status during the low power testing, as well I 6 might add, would we have that right with regard to the 7 September onsite exercise that is upcoming.
8 In order to lay out that I do have to touch, at 9 least very briefly, on the merits of the motion because they 10 are intimately connected.
11 The short of it is that we believe that the UCS 12 case and the Atomic Energy Act grants to the public a 13 hearing right on all issues material and relevant to the 14 licensing. In this instance, to full-power licensing.
.15 Starting from that basic premise we have examined 16 under the regulations what low-power testing is; what its 17 purpose is; how the Commission understands it and 18 specifically whether the Commission, in its regulations and 19 its practice, considers low-power testing material and 20 relevant to the issuance of a full power operating license.
21 Much of the discussion in the motion is addressed 22 to that precise issue: Is it considered by the Commission 23 in both regulations and practice as material and relevant to 24 the issuance of a full-power license?
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l 23555 1 that it is.
7 The next item would then become, under UCS, the k' ,)\
2 3 public would have a right as part of the adjudicatory 4 hearing on the full-power license to litigate the material 5 and relevant matters.
6 And our motion is in part designed to assert or, 7 essentially, to have the Board assert jurisdiction over that 8
matter and to accommodate the public's hearing right in That's the 9
whatever fashion the regulations would require.
10 posture that we come before the Board in our motion.
11 Now, I have in response to the Board's statements 1
in 12 yesterday, I have gone back and I have read and read, l
13 some instances, for the first time NRC case law that appears r~s 14 to indicate that discovery, so-called, under the rules must 7
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N- 15 wait upon the admission of a particular contention.
16 And I want to make the following argument in 17 response. And so therefore, since we don't have any 18 contention admitted on the material matter of low-power 19 testing, it would follow that you cannot grant us any for 20 relief, if the relief comes in the form of a request 21 some discovery. I'm sure that's the concern the Board 22 expressed yesterday. .
JUDGE SMITH: Yes.
23 MR. TRAFICONTE:
I want to address that in light 24 25 of the points I made about our hearing right.
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l 23556 1 The first point I would make is that we do not see 2 this request for observational status as discovery'in the i 3 normal sense in which that word is used in the regulations.
4 We don't believe it really is discovery.
5 Instead, what we think we are requesting is the 6 minimum access necessary to the public to permit and make 7 meaningful the hearing right that we have under the Atomic 8 Energy Act.
9 And I want to make a comparison at this point.
10 And I get this comparison out of the Catawba case that the 11 Board had cited yesterday.
12 In the Catawba case, and now actually I'm talking 13 about the Appeal Board's version of Catawba.
14 JUDGE SMITH: The one that was set aside by the 15 Commission?
16 MR. TRAFICONTE: Well, the Commission set aside a 17 portion of it; that's certainly true. The Commission set 18 aside the portion that said that late filed con'ention t
19 standard No. 1 as to timeliness is automatically met if the 20 documer.t was not available. That was reversed.
21 The portion of it that I want to make reference to 22 now was not reversed, and I don't believe there is very much 23 dispute about this portion. It just happens to have been in 24 the Appeal Board's Catawba discussion. And I'm looking at 25 16 NRC 460, which is the Appeal Board's Catawba opinion, at Heritage Reporting Corporation (202) 628-4888 l
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1 468.
( 2' At that page and'in that discussion the Appeal I
3 Board makes the following point: "That when a notice of 4 hearing issues in an NRC licensing proceeding for an 5 operating license, there are certain documents'available at 6 the outset. The application is available and the FSAR is 7 available. And sometimes, although not always, the'SER is f 8 available."
9 These documents are in the public domain.and l
10 available to Interveners or the public to examine and they for-11 provide the predicate,- in the Commission's eyes, 12 formulating contentions upfront.
13 In this discussion the Appeal Board says: "It is 14 for that reason that it is perfectly reasonable to say that
^t Interveners can examine the public record, and if they're
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16' conscientious, can formulate contentions with the requisite Based on nothing other than the f 17 specificity and basis." 1 i
18 application and the accompanying materials.
19 Based on that principle, which I would acknowledge 20 is a sound principle. I'm not saying that that principle is 21 unsound; the principle is sound.
22 The Appeal Board goes on to say, that in those 23 circumstances, if later there is a document that comes up, 24 you can't sit back and say, well, we don't have to do 25 anything until all the documents are available. In fact, Beritage Reporting Corporation
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j 23558 1 you have an affirmative obligation to use the available 2 materials, formulate your contentions, and essentially open 3 the proceeding, if you will. ,
4 The problem with a parallel to an exercise or to 5 low-power testing is that we don't have any immediate 6 predicate here. There is nothing on which we could base 1
7 contentions except the testing program set forth in the B FSAR, which is a series of abstracts running from 9 preoperational testing all the way down to criticality.
10 And it is a fairly lengthy portion of the FSAR. It just 11 describes each of the tests.
12 It describes the test in the sense that it 13 indicates what it is that the low power testing program 14 involves. It obviously provides no detail on what happened 15 or what were the results of that testing, a.nd what actually 16 took place. It doesn't provide that information for the 17 obvious reason that it has to wait upon the actual events.
18 This runs to the point why we think access is 19 essentially equivalent to having the FSAR in our hands at 20 the outset of the proceeding.
21 In the absence of anything other than the test 22 protocols we would have no capacity to file contentions, 23 based on the testing, because we would have absolutely no 24 information as to what happened during the test program, 25 whether it was up, down, or sideways.
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g 23559 1; So the way we' view the request here is that we so 2 would request to be in the position of silent observer, 3 that'upon completion we would then basically have the same 4 access to the information, at least or most of'the same
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5 access, the Staff would have and we could formulate 6 contentions immediately upon conclusion of the testing.
Let me come back to the jurisdictional' point. The 7-8 case law that'I reviewed indicates that: licensing boards, 9 and in fact, Your Honor, I found a reference in the 10 transcript in this proceeding, in fact, of almost exactly a 11 year ago-when NECNP brought a motion for discovery vis-a-vis ~
12 the Jul.e ' 88 exercise, I found a very similar discussion on 13' this point.
14 I think the jurisdictional issue is an important x
15 one. If by jurisdiction we mean that this Licensing Board 16 has jurisdiction over all present and future material 17 . events, if you will, or material issues, I think the Appeal I-18 Board's recent decision on ' jurisdiction is unambiguous.
19' think this Licensing Board has jurisdiction.
20 If, on the other hand, by jurisdiction we mean 21 that Your Honors don't have the power to authorize the 22 Applicants to permit us onsite until a contention is filed -
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JUDGE SMITH: Yes. That's what you should 24 25 address.
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l 23560 1 MR. TRAFICONTE: All right.
2 If that's the notion of the jurisdictional l
3 limitation, I believe that that jurisdiction is clearly 4 there once the Board recognizes that low-power testing and 5 the next onsite exercise are material to the full-power 6 license.
7 That's to say, you have jurisdiction over those 8 matters to the extent that you have been designated as the 9 plenary Board reviewing -- let me put it this way. You are 10 the plenary Board holding hearings on all material issues in 11 which the public requests such a hearing.
12 Once that jurisdictional point is acknowledged and 13 that you are the right Board, then it would be improper to 14 sit back and say, well, until a contention is filed on any 15 specific matter we don't have jurisdiction to act. You have 16 been given the jurisdiction to act because you have been 17 given plenary jurisdiction over all material issues.
18 The only question on the table, in my view, the 19 only question you have to address is: does the public have a 20 right to litigate low-power testing. Because if the answer 21 to that is, no -- there is no doubt in my mind you are going 22 to hear Mr. Dignan and the Staff argue that the answer is, 23 no. If the answer is, no, then you don't have jurisdiction 24 and it moots the request for access.
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23561 If the answer is, yes, 1 believe the UCS case would mandate.
s ) 2 we do have a right, then the Board has jurisdiction and the LJ 3 Board can craft any form of preliminary access order that 4 would make our hearing right meaningful.
JUDGE SMITH: How, that's a big leap. If you 5
6 could fill in that leap it would be helpful to the Board.
7 MR. TRAFICONTE: Well, I would refer the Board, in 8 the first instance, to a case that was decided in the Indian 9 Point proceeding and the discussion is at 15 NRC 515.
JUDGE SMITH: That was an Indian Point special 10 11 proceeding.
MR. TRAFICONTE: Well, there is no question that 12 was a special proceeding, that's correct. I think at that 13 It runs to J jurisdiction again. I 14 point it is special.
k, 15 think it's quite clear from the discussion that's at 515 to l
16 522, it's quite clear that the Licensing Board asked itself 17 the question: do we have jurisdiction over the exercise?
18 It then decided that it did have jurisdiction over 19 the exercise because it had been given that mandate by the 20 Commission. And it then proceeded to fashion a preliminary 21 form of access relief based on a discussion that I think is 22 quite enlightening about we basically have to afford the Intervenor some opportunity to see what happens; otherwise 23 24 they're not going to have any knowledge or any possibility 25 of formulating credible contentions.
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23562 1 JUDGE SMITH: If you answer this: Indian Point, rather than there being contentions in the normal sense, as 4 2
3 I recall, the contentions were given to the Licensing Board 4 by the Commission, or the issues.
5 MR. TRAFICONTE: The issues, yes.
6 JUDGE SMITH: And the Licensing Board had, within 7 the framework of those issues, all authority from that point l 8 on including discovery authority on those issues. !
9 In any event, I think the Commission sort of 10 explained to the Licensing Board that they shouldn't be I
11 letting Interveners into the control room. I'm not sure if 12 that's the case.
13 MR. TRAFICONTE: Well, let me say this for the 14 record because I spent some late hours last night trying to 15 track down what did happen to that portion of the order. f 16 And I was on the phone fairly late with Emile Julian, your 17 Docketing and Service Office at the NRC. He did a search on 18 something called -- he wanted me to represent that he did a 19 search on something called NUDOC.
20 And although there is no published Commission 21 follow-up to this Licensing Board order, there was an 22 unpublished stay by the Commission running to portions of this discovery or this order. And Mr. Julian was unable, at 23 24 least until 8:30 last night, to find any discussion. We 25 have no reasons, we can't find the Commission discussion of I
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23563 why it issued a stay, whether it had anything to do, for 1
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3 JUDGE SMITH: The Commission in a way interfered 4 with the Licensing Board's providing access to the control room by Interveners. I don't know if they prohibited it or 5
6 what.
7 But in any event, I think there has to be a 8 distinction because the Licensing Board in Indian Point 9 began with the issues before it as to which there was 10 proceeding, as compared to not yet having issues as to which ;
11 it can authorize discovery.
12 I think that's the distinction that you are going j 13 to have to address.
,,s 14 MR. TRAFICONTE: That is the distinction I am !
! 1 It is that distinction that I think l
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l 16 is maybe, perhaps, a distinction without a real difference. ;
17 It is true, then, in Three Mile Island and in i I
18 Indian Point they were special proceedings and the Licensing I 19 Board had certain issues that had been identified and handed 20 to the Licensing Board, and the Comrnission said, here, i investigate these matters. There is no real question about l 21 !
22 that. l We look at it slightly differently. Our view of 23 24 the situation is: what are the issues -- now let me characterize your jurisdiction. Your jurisdiction is 25
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i 23564 1 plenary, in some sense. Not because the Commission has l 2 identified a set of issues and said to this Licensing Board 3 here, hold hearings on X, Y, and Z.
4 Instead, I believe that the jurisdictional posture 5 is that this is the last remaining Licensing Board, given 6 plenary jurisdiction over all matters, present or in the 7 future, that are material to the issuance of a full-power 8 license at Seabrook. That's your jurisdiction.
9 Now, I grant you that that is not a set of 10 identified issues where the Commission has said, look into 11 X, Y, and Z. But in effect what it is, is the Commission 12 has identified this Licensing Board as the Licensing Board 13 that would actualize or make available to the public the 14 hearing on all material issues in which or to which the 15 public has such a hearing right.
16 You are the jurisdictional entity that will give 17 the public its hearing right on all material issues at present or in future. That's how I see your jurisdiction.
18 19 If that is your jurisdiction, then the legal 20 question has to be: does the public have such a hearing I 21 right with regard to the low-power testing program. ]
22 To be perfectly honest with you, I think that's a
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23 difficult legal question.
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l 1 MR. TRAFICONTE: Obviously, we think that we do. I
<- x f 2 We think that UCS cannot be read any other way. We think j l\m -} that what the Commission represented to the D.C. Circuit 1
I 3 i 4 Court in '83, and which I appended to the motion, basically I
5 answers the question that low power testing goes the way of l 6 emergency exercises.
7 However emergency exercises are going to be 8 treated under the law, so should low power testing. In 9 fact, I'm sure the Board has had an opportunity to look at 10 this, but there is a line in the brief that the NRC 11 submitted to the D.C. circuit, which is Attachment No. 4.
12 If you would turn to Attachment No. 4 to our 13 motion, I set forth there quite a few pages from that brief, 14 not all because it's a fairly lengthy brief, but I excerpted px all the portions that dealt with emergency exercises and the (v) 15 16 comparison between emergency exercises and testing.
17 If you would turn to page 32 of the brief, 18 frankly, I think this page resolves the issue of whether or 19 not the public has a right to a hearing on low-power 20 testing. On this page the Commission says, and I'm going to 21 read from the top, "UCS attempts to distinguish pre-22 operational testing as a kind of trivial exception to the 23 hearing requirement, involving no more than 'relatively l 24 simple questions capable of yes/no answer on such things.as 25 whether valves will open and close.'" Cite to the brief.
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1 "We have devoted a section of the statement of 2 facts, supra, to describing in some detail the elaborate and 3 often evaluative testing which takes place outside the 4 adjudicatory process so that it will be clear to the court ]
5 that the Petitioner's characterization is incorrect. The 6 evaluation of operational tests involve something more than 7 walking around the plant in shirt sleeves with a hard hat, 8 flashlight and clip board marking up", perhaps they had FEMA 9 in mind, " marking up a check list while tapping on dials.
10 Engineering judgment is often necessary to determine which 11 tests are to be conducted and to what degree various 12 components and systems must be tested.
13 " Judgment must be used to decide whether the test 14 results, which may include unanticipated responses, actually 15 demonstrate that there is reasonable assorance the systems l
16 or components will perform satisfactorily in operation. In 17 this key aspect, Petitioner's attempt to draw a fundamental 18 distinction between pre-operational testing and evaluation of emergency preparedness exercises fails. Evaluation of 19 but 20 emergency preparedness exercises does involve judgment, 21 so does pre-operati;nal testing. It is entirely reasonable 22 that the two be treated similarly in the licensing process."
23 Couldn't agree more. The problem is, obviously, 24 when the Commission wrote this --
25 JUDGE SMITH: They lost.
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23567 They lost. And in my view, and 1 MR. TRAFICONTE:
Your 2 I've gone back and done a fair amount of research, 3 Honors, on this point, and I will represent to you, unless 4 we are missing some volumes, there has never until this day 5 been any intervenor who has come forward and said that the 6 consequence of the position taken by the Commission to the 7 D.C. Circuit vis-a-vis operational testing, in light of the 8 decision that came out, means that pre-operational testing 9 and low power testing, given their inherent evaluative 10 nature and given the fact that the Commission also says in 11 other places in this brief that it is material to the 12 decision to license --
13 JUDGE SMITH: But in that case wasn't it almost a
,- s 14 given by the Union of Concerned Scientists and a given by
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/ 15 the court that pre-operational testing was beyond the 16 Section 189 of the act, not a litigatable issue, and the 17 court based its decision on distinguishing exercises from 18 that given?
MR. TRAFICONTE: I would like to respond to that.
19 20 That thought has occurred to me as well.
21 In fact, pre-operational --
MR. DIGNAN: Your Honor, I'm going to note a smal:
22 23 objection. I deliberately yesterday took the position that 24 Mr. Traficonte was entitled to a rapid decision on one small 25 aspect cf this motion, and I prepared myself to argue that.
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1 JUDGE SMITH: That's correct.
2 MR. DIGNAN: Now, we are rapidly going into an I admit. I am 3 argument that I'm not prepared to answer, 4 here to argue a very narrow part of this motion, and I have 5 not heard him address really that part.
6 What we are addressing is a prelim. of why the 7 whole should be --
Let's back up a little bit. I just 8 JUDGE SMITH:
9 automatically followed him down that road, because my mind 10 was ready for it. But you are right.
11 s nd, of course, the Staff is here prepared only to 12 argue the discovery aspects of it. But to address the
-13 discovery aspects of it, we have to assume for the argument 14 that the low-power testing does create a hearing right.
MR. DIGNAN: I think that's right.
15 JUDGE SMITH: Well, so we assume it.
16 17 MR. DIGNAN: Yes.
18 JUDGE SMITH: All right. You don't concede it but 19 for this morning's purposes --
20 MR. DIGNAN: I have no doubt you are going to 21 receive a written response which I think will disabuse you 4
22 of that.
23 JUDGE SMITH: Yes.
l 24 MR. DIGNAN: But for purposes of this argument, I 25 assume we will assume it.
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23569 1- JUDGE SMITH: Okay.
/~~N MR. TRAFICONTE: . Fine.
} ) 2-So you can proceed from that point.
3 JUDGE SMITH:
4 MR. TRAFICONTE: Fine.
5' Assuming that we have a right to litigate the test 6 program, both in terms of whether enough tests were 7 conducted, whether the tests were conducted to the 8 sufficient scope and extent, and if we had the right to )
9 litigate the .4 colts of those tests just in the way the 10 Commission inoicated, as to whether they indicate a serious 11 problem or not; our view would be that if we have that right 12 to litigate, you are the Board with jurisdiction over that 13 . litigation.
That follows from the Appeal Board decision.
14 JUDGE SMITH: I think that that is not disputed 15 either.
MR. TRAFICONTE: Okay. So now we have a hearing
'16 17 right for the sake of this argument.
18 MR. DIGNAN: Again, for purposes of this argument.
MR. TRAFICONTE: For the sake of this argument.
19 MR. DIGNAN: So can we drive the argument -- we 20 21 have been here a half hour.
JUDGE SMITH: No, that's all right.
22 MR. DIGNAN: Can we drive the argument towards the 23 24 relevant question, which is the discovery law of this 25 Commission, and not a --
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23570 1 JUDGE SMITH: So you can assume --
2 MR. DIGNAN: -- general legal discussion of this 3 whole motion?
4 JUDGE SMITH: You can assume, for the purpose of 5 argument, you are addressing the arguments to the correct 6 Board.
7 MR. TRAFICONTE: All right.
8 JUDGE SMITH: To the correct Board, and that low-9 power testing does give rise to a litigable, or I mean does 10 support the right of litigation.
11 MR. TRAFICONTE: All right. Then the issue 12 becomes --
13 JUDGE SMITH: Without us ruling on it.
14 MR. TRAFICONTE: I understand.
15 The issue then would become, in deciding this 16 portion of the motion, are you bound, is your jurisdiction 17 to order the relief sought limited, because there has not 18 yet been a contention filed and admitted. That becomes the 19 only issue, because there is case law that says that.
20 And I go back to the point I had made earlier.
21 The case law that says the.t, deals with and addresses the 22 jurisdictional problem that a board would have prior to the 23 admission of a contention; and therefore the opening of the 24 proceeding with a contested issue before the submittal of a 25 contention, the admission of the contention, and a contested Heritage Reporting Corporation (202) 628-4888
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1 issue being opened and the proceeding -- and essentially p
i, ) 2 jurisdiction then flowing to the Board.
3 In this instance you already have been given 4 jurisdiction over these material issues. And for the sake 5 of this argument, you have already acknowledged that it's a 6 material issue, and that you have the jurisdiction.
7 Therefore, this limitation that says before there 8 is a contention admitted you don't have the power to order this form of relief is simply not relevant. That would be 9
10 the first point.
11 The second point is, and by the way, at page 13349 12 in this case, which was almost a year ago, Your Honor, I 13 think you indicated this. I will just read what you said at 14 that time. And again, this was an oral argument that was i7-~ 1
'x_,/ 15 held, a telephonic conference that was held on Interveners' 16 joint motion for discovery which was dated June 2, 1988.
17 On that page there is the following statement by 18 Your Honor.
Judge Smith: "I think it is, yes. We just don't 19 have any jurisdiction over those exercises, none at all.
20 21 You know, we can't control them. We can't set them. The 22 first time we'll be able to do anything about those 23 exercises is when they come to us in the form of 24 contentions.
25 Now, she, "and you were referencing Diane Curran Heritage Reporting Corporation
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23572 l 1 for NECNP, "she cited the Three Mile Island case and Indian 2 Point case, and I -- situations not cases. I wasn't aware !
3 that there was any actual published ruling on it. But, the 4 Three Mile Island Board was given broad jurisdiction over 5 the entire subject matter of the reopening.
6 "Therefore, we had from the very beginning 7 jurisdiction over the exercise and we had the authority to 8 allow Intervenor observation."
9 The link in your mind, I think, is the right link.
10 If your view was that the Board had jurisdiction over the 11 matter --
12 JUDGE SMITH: No, we had jurisdiction from the 13 very moment of the Notice of Hearing. From the very moment 14 that the Board was created, without any contentions, we had 15 jurisdiction and a mandate from the Commission to make i 16 certain findings as to a list, a very broad list of design 17 and operational issues.
18 Furthermore, it was early on that a broad spectrum 19 of contentions were offered and accepted and discovery 20 authorized after that, which included site visits.
21 And not only that, but the issue was never really 22 contested because the General Public Utilities afforded 23 voluntarily site visits.
24 So I think the first distinction is sufficient, 25 and that is, the moment that the Board was created, it also Heritage Reporting Corporation (202) 628-4888 l
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23573 l' created issues as to which it could manifest its l
/O 2 : jurisdiction -
() 3 We could not, I'm sure, have authorized a site 4 visit to the board room of GPU to see if they were 5 financially solvent or whatever'it was, because that was not 6 one of the issues. Well, as a' matter of fact, that was one 7 of the issues.
8 MR. TRAFICONTE: It was one of the issues.
9 JUDGE SMITH: I can't think of an issue that was 10 not included.
11 MR. TRAFICONTE: Right.
12 JUDGE SMITH: But it was very broad.
13 . MR . TRAFICONTE: Right. But I just want to read 14 from the Appeal Board's decision of last week where they
, 15 quote from the Notice of Reconstitution of January of this N
16 year. Their cite, which is a --
17 JUDGE SMITH: You mean the reconstitution by the 18 chairman of the panel?
19 MR. TRAFICONTE: Yes, yes. In January of this 20 year.
21 JUDGE SMITH: I'll cut you short there, because 22 the chairman of the panel can only parcel out jurisdiction 23 which is given to a generic licensing board by the 24 Commission.
25 MR. TRAFICONTE: Yes, I --
Heritage Reporting Corporation (202) 628-4888
23574 1 JUDGE SMITH: But, again, we are distinguishing ,
i 2 between plenary jurisdiction to entertain any issues which 3 might become before this Board, which I think that you are 4 correct on, and that we assume for the purpose of argument - i 5 -
6 MR. TRAFICONTE: Yes.
7 JUDGE SMITH: -- and the actual manifestation of 8 that jurisdiction into the issues which are accepted for 9 litigation.
10 For example, let's take a United States District 11 Court, take any court with a venue. It has jurisdiction to 12 receive complaints of petitions and consider on the 13 pleadings whether they raise issues to be litigated. But 14 they do not have jurisdiction because of their sitting in 15 the venue to tippy toe throughout their venue and order 16 discovery for the purpose of generating complaints before 17 them.
18 And the Commission's approach is somewhat the same 19 in that respect. Certainly, we are created as a Board, 20 number one, to determine in the first instance whether, with 21 respect to particular issues, do wa have jurisdiction over 22 them. And that is, do they meet all of the requirements of 23 the pleadings and the scope of the hearing notice and 24 everything else.
25 But you still have a gap that you have not Heritage Reporting Corporation (202) 628-4888 I
23575 1 bridged. And that is, how you get the specific discovery type of order that you are requesting when there have been (v) 2 3 no issues before us.
MR. TRAFICONTE: Let me respond.
4 JUDGE SMITH: Could we, for example, let's go over 5
6 to'the Attorney General's office and just have a general 7 discovery on them?
8 You are a party to'the proceeding under your 9 argument. Let's just go wandering around over there and see 10 what we can find.
11 MR. DIGNAN: Here's a deal that could be cut.
12 (Laughter) 13 MR. TRAFICONTE: You are all more than welcome.
14 MR. DIGNAN: To go barefoot through the Attorney
.s t \s_ 15 General's files on Seabrook?
16 MR. TRAFICONTE: You actually have already done 17 it.
18 MR. DIGNAN: Don't I wish.
19 JUDGE SMITH: So I am just waiting for you to fill 20 that gap, and I think you have probably said all -- I'm not 21 going to cut you off, but I still think there is a void in 22 your argument.
All right. I see the argument as 23 MR. TRAFICONTE:
24 having two prongs.
One is that my view of your jurisdiction 25 would permit you to order discovery prior to the filing of e- Heritage Reporting Corporation i [ (202) 628-4888 I (
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23576 ;
1 contentions. I, apparently, have not convinced you that's 2 the case.
3 The other prong is what I laid out at the outset, 4 which is we would claim some form of access as part and 5 parcel to our having a hearing right. And I would go back 6 to my point that I was drawing from the Appeal Board's 7 discussion in Catawba. That if you parallel this proceeding 8 to the initial proceeding on the application, at the outset 9 of an initial licensing proceeding you have an FSAR. The 10 public has something.
11 And again, I come back to this point. If we --
l 12 JUDGE SMITH: Yes, but even if you are correct 13 with that argument --
14 MR. TRAFICONTE: Yes, yes.
15 JUDGE SMITH: -- let's say that meaningful hearing 16 rights under this case cannot be granted because there is 17- nothing equivalent to the SAR.
18 You are addressing the wrong forum, because the 19 Commission has elected to grant to the licensing boards as 20 its agents the very, very powerful right to order entry into 21 land, eubpoenas, interrogatories, all of these invasive 22 powers only within the tight scope of issues which we have 23 similarly found to be within the scope of the Notice of
[ 24 Hearing.
25 They have not granted plenary power to order the Heritage Reporting Corporation (202) 628-4888
23577 1 production of information and the entry into land just in
[ ] '2 the general sense. They have limited it sharply by the very
\/ s 3 terms of the discovery regulation. You need look no further 4 --
5 MR. TRAFICONTE: When it comes to the issue --
6 JUDGE SMITH: -- to the issues that we have 7 accepted.
8 MR. TRAFICONTE: When it comes to emergency 9 exercise litigation, I believe there has simply been an 10 exception to that rule. And I think the exception is based 11 on the idea that without some form of access and 12 observational status the hearing right that the Atomic 13 Energy Act gives the public is not made meaningful.
14 I reviewed again last night CLI 88-9, which was
!,v) 15 the scheduling order that the Commission issued in the 16 Shoreham proceeding in December of last year. And in that 17 case, which had set the expedited schedule for the second 18 Shoreham exercise, there is a discussion by the Commission 19 of why there is no discovery necessary.
20 And the reason why there is no discovery 21 necessary, the Commission says, is because the interveners 22 were observers. They had observational status at the 23 exercise. They could gather information directly, and i
24 therefore they don't need to have discovery in this regard.
l I think that's an acknowledgement as was true in 25 i
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-1 this case. Although the Board did not order it in this 2 case, we obviously, by stipulation and agreement, had 3 access. I think that there is an implied right. If you 4 have a right to litigate an emergency plan exercise which, 5 as is clear, we analogize to this low power testing, if you 6 have a right to litigate that, you basically have some i 7 right, in whatever form is appropriate, to observe it. You 8 can't have one without the other.
9 You can't say to us, yes, you are right. We do 10 have --
11 JUDGE SMITH: How about the reports?
12 MR. TRAFICONTE: Pardon me?
13 JUDGE SMITH: How about the reports?
14 MR. TRAFICONTE: Well, I was going to come to the 15 reports. This is the distinction between the onsite 16 exercise, the low power testing program and the offsite 17 exercise.
18 First, FEMA is not involved, which I'm sure we 19 will all breathe a great sigh of relief. FEMA is not 20 involved in the low-power testing or in the review of the 21 onsite exarcise. Therefore, there is no report.
f 22 In fact, and I know from very personal experience, 23 the only thing that you will see, if you see anything, that 24 comes out of an onsite exercise review by the NRC Staff is 25 in the form of an inspection report which is, I would say to Beritage Reporting Corporation (202) 628-4888 1
I 23579' 1 'put it kindly, some times very brief and fairly opaque. And 2 -for example, does not provide the objectives, doesn't set
'3 forth what the objectives of the exercise.were; doesn't set-4 forth in any detail what transpired.
5 It basically lists, and just so the Board is 6 aware, we have gone over this ground in some detail with an 7 onsite exercise contention that we had filed with the other 8 board and which is now up on appeal. Our office, and I 9 personally am quite familiar with the. documentation that is 10 generated, or at least available to Interveners from the 11 Staff after an onsite exercise.
12 There is really no comparison between the 13 documents that we would get at the conclusion-of the 14 September exercise and the FEMA report which is, as we now 15 'know, a full dress rehearsal of what happened.- So from that 16 alone I think it's appropriate, and as the Board indicated 17 back last year, it's appropriate to use the release of the 18 FEMA exercise report as the point at which contentions could 19 be formulated.
20 21
~
22 23 24 25 L Heritage Reporting Corporation g (202) 628-4888 l
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23580 1 MR. TRAFICONTE: There is not going to be anything 2 like that this time. There is not going to be any document.
3 There are six NRC inspectors up there, even as we 4 speak, who are observing the low power testing or, in this 5 instance, they' re observing the power ascension program; and 6 there isn going to be anything in the form of: and this is 7 what we saw at 11:55; and this is what we saw at 11:58. ,
I 8 It's not going to happen.
9 Basically, it's going to be an intimate 10 conversation, if you will, between the Applicants and the 11 NRC technical staff. And we're going to be sitting back 12 here -- and again, obviously we're not going to reargue this 13 -- but assuming we have a hearing right we're going to be 14 sitting bacx here waiting for them to release an inspection And then !
15 report which will say, strengths and weaknesses.
16 in a very summary and clipped fashion just list things that 17 they saw.
18 And the Appeal Board will say to me some months 19 from now, well, you should have been able to deduce from that what was going on. That won't be possible. We won't 20 21 have any capacity to formulate intelligible contentions 22 without some form. And I have left it very vague, because I 23 think the relief has to be tailored to the circumstances, 24 without some form of access, observational access, and 25 certainly, access to the documents; access to the documents Heritage Reporting Corporation (202) 628-4888 l
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23581 !
l that' describe the low-power test protocols. ]
1 2 JUDGE SMITH: .I think we can assume, again for the i 3 purposes cxE your argument, assuming that you have a hearing -)
right to the. low-power testing that full exercise of that_ l 4 1
, 5 hearing right might include observation.
MR. TRAFICONTE: It would.
6 JUDGE SMITH: Let's assume for purposes of the i
7 8 argument. I still believe you fall short in convincing us 9 that you are addressing it to the right forum.
Who would be the right -- if that 10 MR. TRAFICONTE:
11 follows --
12 JUDGE SMITH: Fortunately, I don't have to decide 13 that. All'I have to decide is, we're the wrong one.
14 I guess the Commission is or the Appeal Board g-~s I.t 15 exercising their delegated authority to make policy 16 judgments for the Commissioners.
17 MR. TRAFICONTE: Would the Board certify the 18 narrow question, that assuming --
JUDGE SMITH: I think what you have here, Mr.
19 Traficonte, is the opposite side of.the coin. That if we 20 were to order Mr. Dignan to give access, that is a matter 21 22 which is irreparable on appeal for damage.
23 And I think it may very well be that you have 24 exactly the type of irreparable damage --
MR. TRAFICONTE: Yes.
25 Heritage Reporting Corporation
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23582 1 JUDGE SMITH: -- that would be attendant to your 2 hearing rights if you don't --
3 MR. TRAFICONTE: If we don't have the access.
4 JUDGE SMITH: -- if you don't have the access.
l 5 But I don't want to get involved in that other than to 6 facilitate, perhaps, by a fast order of the digital version l 7 of this argument this morning.
8 MR. TRAFICONTE: Yes.
9 JUDGE SMITH: Which we can transmit down to the 10 Appeal Board.
11 MR. TRAFICONTE: Sounds vaguely familiar somehow.
12 It is certainly not my intent to get into a weekly process.
13 JUDGE SMITH: You are seeing bureaucracy in 14 reverse here. Usually bureaucrats try to expand their 15 jurisdiction and here we're given jurisdiction we don't 16 think we have.
17 I think that's where your relief is going.
18 MR. TRAFICONTE: Let me just make one final 19 comment, and then it will be Mr. Dignan's turn. l l
20 If the Board acknowledges, based on the argument, 21 it appears that if we had the hearing right in light of the 22 nature of what's happening and the nature of the process, 23 that it would require some form of observational status to 24 make that hearing right meaningful, I believe this Board 25 does have the inherent power to fashion that relief. I do Heritage Reporting Corporation (202) 628-4888
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23583-
-1 believe that.
,. fs.
2 Although I appreciate there may be some 3 uncertainty on that point, I~think it's perfectly 4' appropriate to certify that particular question as to l
5 whether you can fashion the relief.that we are seeking. I
'6 see no problem.
7 MR. DIGNAN: I really object to this.
8 I acceded to coming in here and giving him a quick 9 shot at one question. Now what he is trying to do is set up 10 a certification down at the Appeal Board of the merits of 11 the motion.
12 MR. TRAFICONTE: Not at all.
13 MR. DIGNAN: Yes, you are.
14 MR. TRAFICONTE: Not at all.
,b 15 MR. DIGNAN: Because you are hanging on the assumption that'the Board and I are making for purposes of
~
16 17 your argument and saying now, you said a meaningful hearing 1
18 right does mean some right of observation. That's the 19 point.
20 MR. TRAFICONTE: Which would be the question 1
21 presented to the Appeal Board.
22 MR. DIGNAN: No. Because that is not what the 23 purposes of the assumption was. The purpose of the 24 assumption was to come in here and see if you could make.it 25 under the discovery rules with that as an assumed fact.
Beritage Reporting Corporation (202)- 628-4888
23584 1 I do not assume you have a hearing right, Mr.
2 Traficonte. I do not assume you have any right of 3 observation if you do have a hearing right.
4 MR. TRAFICONTE: Well, that's obvious.
5 JUDGE SMITH: I think it's clear, Mr. Dignan, you 6 don't assume it and the Board doesn't predict that we will 7 find it either.
8 I'm just saying that for the purpose of discovery 9 those are our assumptions and if we are wrong or whatever, 10 by next week at this time it won't matter.
11 MR. TRAFICONTE: And I'm sitting here believing 12 that we're right on the hearing right and the jurisdictional 13 issues. And I agree that in major part it may not matter by 14 this time next week and I don't think that's appropriate.
15 Since I see no harm to the Applicants to permit us 16 to have some silent observer appropriately reined in and 17 located where he could have absolutely no impact on safety 18 or operations, since there is no cost over there and 19 basically a irreparable injury to the hearing right over l's here, assuming it exists, I can't see why we can't --
21 JUDGE SMITH: Look, if you were to convince us and 22 we were to direct Mr. Dignan or the Applicants to give you 23 observational rights there, I would expect that they would 24 not accept it either. They would go right up there and get 25 a determination on it.
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23585 1 I think that's where it is going to be. The way it stands right now, without even hearing from Ms. Chan or
! [V ) 2 3 Mr. Dignan, you have not persuaded the Board that we have 4 the authority to force entry into that plant under discovery 5 before an issue is accepted and drawn.
6 About the only relief we can give you is the 7 mechanical relief of making a ruling quickly available to 8 you for whatever appeal you.want to make.
9 As far as certification is concerned, you always 10 seem to ask for that. And again, I don't see what 11 difference it makes.
12 In fact, we're not going to adjourn and go back to 13 Washington and prepare a certification. The Appeal Board 14 will look at it or whoever you take your appeal to, will n
I 15 look at it on its merits, I' m sure.
v 16 MR. DIGNAN: Your Honor, before you make the 17 ruling. I assume this is going to wind up down in front of 18 the Appeal Board and the transcript again. I would like the 19 privilege of putting in the Applicants' view of the law on i 20 this, so that at least it is not -- we started with a motion 21 that treated this with one paragraph. It could have been 22 denied on that ground alone. The motion was not complete 23 when filed, although it is not a motion that was whipped up 24 in a hurry. I have known it has been coming for some time.
25 So on that basis the motion should be denied right away.
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1 Secondly, the Board has already referred to the 2 fact the regulation itself restricts the discovery to 3 contentions in an operating license proceeding to matters 4 relevant to contentions that have been admitted.
5 More importantly, what we really heard here is the 6 old argument that I'm entitled to discovery to frame my 7 contentions. That argument has been made to the Commission 8 since at least 1973. It was first turned down in Nortan 9 States Power Company, ALAB-107, 6 AEC 188. Reconsideration 10 denied, ALAB-110, 6 AEC 247. Affirmed CLI 73-12, 6 AEC, 11 241.
12 It was turned down again in 1974 in Wisconsin 13 Electric Company, Koshkonong Nuclear Plant, Units 1 and 2, 14 CLI 74-45, 8 AEC, 928, 1974.
15 The doctrine that you do not have discovery to 16 bring your contentions was upheld jurisdictionally in BPI 17 versus AEC, 502 f.2nd 424, 428-29 D.C. Circuit 1974.
18 That whole second argument you heard has been made 19 to the Appeal Board, the Commission, and the Courts and it 20 has lost every time. That's all I have to say.
21 JUDGE SMITH: Ms. Chan?
22 MS. CHAN: I think Mr. Dignan has probably covered 23 the field on the lack of rights of discovery for the purpose 24 of framing contentions.
25 However, specifically I would like to address the (
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23587-1 Mass AG's argument that they need this observational status g
2 to make their hearing right meaningful.
3 The NRC documents, the entire low-power testing 4 procedure, at the present time now there is a prelow-power 5 inspection going on and that will produce a readiness 6 assessment team report.
7 Following the completion of that there is a low-8 power inspection which results in a low power team report 9 plus the' resident inspector produces an inspection report.
10 And Region 1 inspectors also produce an inspection report.
11 Excuse me, the regional inspectors produce more 12 than one inspection report on the low-power testing.
13 All that information is put together and released 14 in the form of a 94.300 letter which is from the regional 15 director to Murley of the NRC. And this contains an 16 assessment on readiness for full power and the NRC Staff's 17 recommendation.
18 If any problem arose during the low-power testing 19 it would be documented in one of these NRC inspection 20 reports.
21 Since low-power testing must be successfully 22 conducted prior to full-power operation, I don't think that 23 the Mass AG is being deprived of any information.
24 The availability of all these various reports, the 25 prelow-power report; the low power report by the low-power
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23588 1 team; the inspection reports by the resident inspector and 2 the regional inspectors plus the 94.300 letter make the Mass 3 AG's hearing right meaningful.
4 Massachusetts Attorney General has a right to 5 propose contentions based on this information and seek their 6 admission, and if admitted, litigate those contentions.
7 This is the opportunity afforded the public to litigate the 8 low power testing.
9 JUDGE SMITH: You are not stating at this time 10 that they do have a right to litigate the low-power testing, 11 are you?
12 MS. CHAN: No, this is --
13 JUDGE SMITH: They do have the right, is that it?
14 MS. CHAN: This is based on the assumption we made 15 that they had a right to litigate. And also, that they had 16 some right to observe or obtain information. And this makes 17 this hearing right meaningful because this information is 18 available.
19 MR. TRAFICONTE: Could I just respond to that 20 statement about the documents.
21 Could I have the Board either request, urge, or 22 order the Staff to retain any and all documents generated by 23 the inspectors or anybody else in the control of the Staff, 24 all documents that then become the basis for these various 25 reports.
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23589 1 JUDGE SMITH: Mr. Traficonte, every time this
[ 2 comes up you are faced with the same problem.
1
~
3 MR. TRAFICONTE: The jurisdictional problem is the 4 same even with regar'd to --
5 JUDGE SMITH: We have absolutely no administrative ,
6 authority over the Staff. No supervisory authority over the 7 Staff.
8 We only have authority over the Staff as a party 9 to a proceeding on issues that are given before us.
j 10 MR. TRAFICONTE: I see.
11 JUDGE SMITH: In fact, the Commission has made it 12 clear in other decisions that if we believe that there is 13 some nonperformance upon the Staff, we are not to order them 14 to perform; we are to report the matter up the appellant n
[ } 15 line.
'%J 16 MR. TRAFICONTE: So document retention is not in j I
17 your jurisdiction.
18 JUDGE SMITH: Absolutely not.
19 MR. TRAFICONTE: I just warated to indicate, and 20 again I am not happy to have to report this the second week 21 in a row, but I would want to seek an interlocutory review
~
22 and seek directive certification on the portion of the l
23 denial, if the Board would officially deny, that portion of 24 the motion granting us some relief as to access or 25 observational status, and specifically the last request i Heritage Reporting Corporation f
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23590 i 1 having to do with making sure that the documentation that is j 2 generated is retained.
3 MS. CHAN: Mr. Traficonte, I can assure you at 4 this point that I will make sure that the documentation is 5 retained.
l l
6 MR. TRAFICONTE: Would that include the special 7 computer program that has been written, so that the core 8 exposure can be tracked as well?
9 MS. CHAN: Well, the information I have as to the 10 reports that I have discussed on the record, and as to that 11 information I will assure you and the Board that those 12 documents will be retained. As to other documents I'm not 13 aware of, I can't make that same assurance.
14 But as to the ones that I have mentioned on the 15 record, all documentation pertaining to those will be 16 retained.
17 JUDGE SMITH: The portion of your motion to be 18 granted observation opportunities during the power 19 ascendancy is denied.
20 Your motion that we certify the matter is being 21 denied.
22 We will, however, provide for the most rapid 23 transmission of the transcript of this morning's arguments l l
24 and rulings to headquarters as we can possibly get them.
25 MR. TRAFICONTE: Thank you, Your Honor. l l
I Heritage Reporting Corporation (202) 628-4888
23591 JUDGE SMITH: It will be down in the hands of my 1
. j. -
secretary for further transmission depending upon what you
.Q 2 3 need.
4 Off the record.
5 (The Board confers.)
6 JUDGE SMITH: We're off the record here.
7 (Discussion off the record.)
8 9
10 11 12 13 l(
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l 23592 l 1 JUDGE SMITH: On the record.
2 MR. DIGNAN: With respect to the balance of the 3 motion, unless I am directed otherwise, I assume I have 10 4 days to respond to it in writing.
5 JUDGE SMITH: Yes.
6 MS. CHAN: The Staff also.
7 MR. DIGNAN: The reason I have carefully -- this 8 is not just to be difficult. But the reason I have 9 carefully cleaved this thing into the minor argument we had 10 today is I do intend to respond carefully. This was not a 11 motion I thought I could respond to orally, and I want the 12 time to writs a good and full legal response to it.
13 JUDGE SMITH: We have no cause or justification to 14 order an expedited filing on this having addressed the --
15 MR. TRAFICONTE: I believe that's the case.
16 The only point I would want to make for the record 17 is that the relief sought is that the Board hold the record 18 open. And to the extent that we have today, be'ing June 1, 19 and we have an ongoing hearing that will close the record at 20 some point, I obviously would seek to have the determination 21 by the Board before the record closes otherwise. That's 22 all. But I don't think that's going to be a time problem.
23 If they have 10 days and they don't respond until 24 the 8th or 9th of June, and the Staff takes another four or 25 five days, we would be getting into the June 15th, June 18th Heritage Reporting Corporation (202) 628-4888 I
i
REBUTTAL PANEL NO. 21 - CROSS 23593 1 period. And with the possibility of the record closing on i 2 what we are now dealing with, June 30 or perhaps some days 3 before June 30, that's my only concern.
4 JUDGE SMITH: Okay.
MR. TRAFICONTE: Could we stay off the record or 5
6 go off the record.
7 JUDGE SMITH: All right.
8 (Discussion of f the record. )
9 JUDGE SMITH: Mr. Fierce.
10 MR. FIERCE: Thank you, Your Honor.
11 Whereupon, 12 CATHERINE M. FRANK 13 ANTHONY M. CALLENDRELLO 14 JOHN G. ROBINSON
,-s 1 l
[ )
15 having been previously duly sworn, were recalled as l
( ,/
16 witnesses herein and were examined and testified further as 17 follows:
18 CROSS-EXAMINATION 19 BY MR. FIERCE:
f 20 Q Good morning, Panel. 1 l
I I know Mr. Callendrello, 21 My name is Allan Fierce.
22 but I don't believe I have had the opportunity to talk to 23 either of the other members of the Panel.
24 I wanted to begin this morning by asking at least 25 the new members and also Mr. Callendrello, if he has
('
(
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1 REBUTTAL PANEL NO. 21 - CROSS 23594 1 anything new to add to his resume, what it is in your 2 background or expertise that you brought to this testimony.
3 Because as I look at the resumes of each of the witnesses, 4 it's not clear that there are distinct pieces of expertise 5 that would allow me to understand who wrote what parts, or l 6 who is responsible for what.
7 And could I start with Ms. --
8 MR. LEWALD: I'm going to object to this question 9 in this form, to have witnesses give an exposition as to --
10 if he wants to know what parts of the testimony they have a 11 primary responsibility for or something of that nature, I 12 wouldn't object to that. But to ask them for a general 13 exposition as to what they bring to this Panel, I think is 14 an unfair question and it's such a broad question that we 15 object to it.
16 JUDGE SMITH: Well, I don't know.
17 MR. LEWALD: Their qualifications --
18 JUDGE SM.TTH: He's entitled to inquire into their 19 expert qualifications. He's entitled to inquire into their 20 factual contribution to the testimony. And I don't see why 21 he can't blend the two together. I think it's appropriate.
22 If they can't answer, that's another thing.
23 MR. LEWALD: I don't quarrel with his right to 24 inquire into their expertise or their qualifications. But 25 to ask a general question along these lines, what are your Heritage Reporting Corporation (202) 628-4888
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1 REBUTTAL PANEL NO. 21 - CROSS 23595
' qualifications' and what do you bring to this Panel, I submit l 1
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' lf%.) (
Ad 2 .is too broad. l I
3 JUDGE SMITH: If they can't answer,.that's one i i
4 thing. The question is appropriate. ;
5; Objection overruled. l MR. FIERCE: I'm not even sure I had put the 6
7 question yet to Ms. Frank that I was going to be'-- l 8 JUDGE SMITH: So you've got a free one coming up. U 9 BY MR. FIERCE:
The question I was going to ask is, I see that 10 0 11 what we have here is a piece of testimony dealing with coordination of governmental resources and responses. We're 12 13 talking'about Massachusetts state and local EPZ governments.
14 And I see also that you have a B.S. in geology and graduate
[i 15 studies in geology and geochemistry, and that you are now
~
- 16. working with Impell.
17 But I don't see the connection --
JUDGE SMITH: She corrected that yesterday, that 18 19 degree, as B.A.
20 MR. FIERCE: Excuse me.
21 BY MR. FIERCE:
22 ~Q You have a B.A. in geology.
23 But as I look through the resume, it doesn't jump 24 out at me what it is that you would have brought to a piece 25 of testimony about coordination of governmental resources l
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1 J
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REBUTTAL PANEL NO. 21 - CROSS 23596' 1 and responses.
2 And I wonder if you could tell me what it is.
3 A (Frank) Well, I have been working on the Seabrook 4 project for New Hampshire Yankee since 1986, Decembir of 5 '86. And the first year prior to the issuance of the SPMC, l
I 6 I was involved with a project team that researched the state 7 plan. First of all, the very first thing we read was the 8 Commonwealth's Comprehensive Emergency Response Plan, and 9 all of what had been developed for the local communities at 10 that time.
11 And the team, prior to the issuance of the SPMC, 12 dealt with, I would say, at least four iterations of 13 different concepts of operations for these plans and how 14 they would coordinate with the state.
15 So we had a whole year of experience worth of 16 kicking that around and trying to come up with the correct 17 concept that would blend in with what the rulemaking was 18 going to be. As the proposed rulemaking changed, we looked 19 at a variety of concepts. So we did have that year.
20 And then following that, I spent I would say 1
21 another six months working in drills and exercises. I was l 22 the lead controller at the EOC, and very definitely 23 coordination with the State of New Hampshire, and our !
24 simulated coordination with the nonparticipating governments 1 25 was part of our drills.
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23597 REBUTTAL PANEL NO. 21 - CROSS 1 Q So you were working as a planner?
(Frank) That's correct.
k 2 A m 3 O Do you have any prior experience with working with
_ =
4 Massachusetts state government?
A (Frank) No, I don't.
5
] 6 Q With any of the local governments in the EPZ? !
Il A (Frank)
Not with the local governments directly.
7 8
With some of the facilities.in the communities, yes, during 9 that year.
g Some of the facilities?
l 10 Q A (Frank) Yes.
11 12 Q What do you mean?
a 13 A (Frank) The hospitals and nursing homes.
14 Q You were, as a planner --
A (Frank) Dealing with them.
15 16 Q -- in contact with those facilities?
17 A (Frank) Correct.
18 Q Mr. Callendrello, is there anything that you want 19 to add to your background and experience that we haven't 20 talked about before that would give me some light on what it 21 is that you brought to this testimony?
I'm aware of your planning background and your l} 22 23 position at new Hampshire Yankee, 24 A (Callendrello) I'm not quite sure what we've 25 discussed before as being relevant to this testimony. I Heritage Reporting Corporation O (202) 628-4888 l
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REBUTTAL PANEL NO. 21 - CROSS 23598 l
l I could just give you a short exposition of what I think is 2 relevant to the testimony.
3 I've got nine years of emergency planning l 4 experience for a variety of offsite and onsite types of 5 plans. In 1983, I was the project engineer responsible for 6 developing the LILCO offsite response plan, the first 7 utility offsite response plan. I developed that plan, took 8 it through three revisions to the point where it had been 9 submitted to FEMA ror their review.
10 I joined New Hampshire Yankee in 1984, and 11 immediately began working with both New Hampshire and 12 Massachusetts state and local governments in the development 13 of their plans.
14 In 1985, I became the supervisor responsible for 15 offsite response planning. And as such, was responsible for 16 directing the activities of our planners and the contractors 17 who were developing the plans for both New Hampshire and 18 Massachusetts state and local communities.
19 I have continuously dealt with state agencies 20 throughout that period, and was involved with state agencies 21 in Massachusetts until the conclusion of their planning in 22 1986, and continued even beyond that point to have some 23 contact with those state agencies as a matter of the regular 24 course of business.
25 And as far as the S?MC goes, I was the project Heritage Reporting Corporation (202) 628-4888
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REBUTTAL PANEL NO. 21 - CROSS 23599 I 1 manager or the project leader for the first version of the
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(s_ ,) 2 utility-sponsored plans because of my experience at LILCO.
3 I was the one who established the project team to develop 4 that plan from the project organization in June of 1986.
5 That organization, as I became more involved in the 6 hearings, was moved to a different planning group, but I 7 continued to serve in a review role and also to provide 8 input based again on my experience at LILCO.
9 And as we moved into the phase of litigation of 10 the SPMC, I continued to provide input and still to this day 11 continue to provide input to make improvements, changes to 12 the SPMC.
13 0 Mr. Callendrello, you have not worked for the 14 Massachusetts state government, have you?
~~s
(_, 15 A (Callendrello) I have never been an employee of Massachusetts state government. But for roughly two and a 16 17 half years, I was involved directly with them in the development of their plan: state, area and local plans.
18 19 Q Do you consider yourself to be an expert, as we 20 use that term here, in the operations of the Massachusetts 21 state government in the field of emergency response for 22 nuclear plantsi 23 A (Callendrello) As I underst :. ad the term " expert",
24 is in the swase of can I give an opinion on Massachusetts In that uerse, I don't consider myself an expert.
25 plans.
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REBUTTAL PANEL NO. 21 - CROSS 23600 1 I do consider myself extremely knowledgeable about 2 the way Massachusetts plans worked, particularly those plans 3 that were developed in the 1984 to mid-1986 time frame, and 4 some beyond that date. ,
5 Q And just to wrap it up.
6 With respect to the six EPZ communities, you also 7 have not worked directly for them as an employee; is that 8 correct?
9 A (Ca11endre11o) That is correct.
10 Q Any of them.
11 And again,_would not hold yourself out as an 12 expert in local emergency planning and response for nuclear 13 disasters for any of the six EPZ communities?
14 A (Callendrel / Again, expert as I narrowly l 15 defined it and as I understand it an expert is someone who 16 can give an expert opinion.
17 Once again, as with the state and area plans, I'm 18 very knowledgeable in the local plans, local planning 19 arrangements. I have worked with the communities in 20 response to actual emergencies.
21 So to that regard, I feel I can describe what 22 their plans are and how they would respond.
23 0 Well, you can describe what their plans are. But 24 in terms of how they would respond, are you saying you would 2S be qualified to offer an epinion with respect to any or all Heritage Reporting Corporation (202) 628-4868
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REBUTTAL PANEL NO. 21 - CROSS 23601-1 of the six EPZ towns and how they would respond?
g
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2 A (Callendrello) I can tell you what their response 3 has been in an area-wide emergency,.particularly in
'4 coordinating with Seabrook station.-
5 Q That's descriptive. -You can describe what's 6 happened and what you know about the plans they have.
7 A (Callendrello) That's correct.
8 Q Okay.
9 A (Callendrello) That's what I thought I had said.
10 Q- Well, that's different from saying, I know what 11 they would do, in my expert opinion, in the event of an 12 emergency.
A (Callendrello) I thought I made it clear.
13
. 14 Q Okay.
k, 15 A (Callendrello) I didn't think I was an expert as 16 narrowly defined in this proceeding, but was knowledgeable 17 in their plans and what they had done in the past.
18 Q All right, moving to Mr. Robinson.
19 A similar question. Again, I see from your resume 20 that you are an environmental engineer, director of the Environmental Engineering Department at Yankee Atomic. And 21 22 again, it doesn't jump out at me exactly what it ds that you 23, can bring to a piece of testimony about governmental 24 resources and response in Massachusetts.
25 Can you enlighten me on that?
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REBUTTAL PANEL NO. 21 - CROSS 23603 j 1 A (Robinson) Yes. I've been interfacing with the !
2 Massachusetts Civil Defense and the Department of Public 3 Health for the last 24 years in Massachusetts. Starting j I
4 with the first emergency plan we had out at the Yankee plant l 5 which at that time was about five pages, up to the point 6 where we are right now where we have very comprehensive 4 1
8 In my dealings with the Department of Public 9 Health and the Civil Defense, we have worked with them to 10 help them develop the local plans, the area plans, and the 11 NIAT plans. We worked with them on the ingestion pathway 12 plans.
13 I am also a member of the offsite response 14 organization on the Mass state health liaison.
15 Q You are a member of the ORO?
16 A (Robinson) Yes, I am.
17 Q In what capacity again?
18 A (Robinson) I'm the liaison to the Mass Department 19 of Public Health.
20 Q You are one of the liaisons?
21 A (Robinson) That's correct.
22 Q Are you the red, white or blue team?
23 A (Robinson) I'm the red team.
24 Q First stringer.
25 Where are you physically located in your position 1
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REBUTTAL PANEL NO. 21 - CROSS 23603 1~ for Yankee Atomic?
(Callendrello) In Bolton, Massachusetts.
(D) 2' A Bolton, Mass.
3 Q 4 With respect to your years of experience with 5 Yankee Atomic working with the planning agencies you 6 identified, DPH and MCDA, are you holding yourself out to be 7 an expert with respect to the operations of those agencies, 8 their plans, their procedures and how they would respond?
9 A - (Robins on) I would consider myself knowledgeable 10 of their procedures and way of doing business.
11 Q One of the things that I want to clarify, Panel, 12 is who you are here speaking for. I understand'this is 13 Applicants' testimony. . But I also understand, to some 14 extent, that the ORO is an independent organization..
g 15 Are you here speaking for the Applicants or for 16 the Applicants and New Hampshire ORO?
17 MR. LEMALD: I'm going to object to that.
18 Your Honor, the testimony is'being presented by 19 the Applicants, and the Panel is the Applicants' Panel.
20 MR. FIERCE: There is some confusion, here, Your 21 Honor.
22 JUDGE SMITH: That might be self-evident, but it's 23 not a basis for objection.
24 MR. LEWALD: I think it is It's so self-evident that I think the matter is beyond inquiry. Whether or not 25 Heritage Reporting Corporation (202) 628-4888
I REBUTTAL PANEL NO. 21 - CROSS 23604 l
1 they are appearing for somebody else at the same time, 2 I --
3 JUDGE SMITH: What's the basis of your question?
4 MR. FIERCE: Your Honor, the Applicants have held 5 out the ORO to be an independent organization, a nonprofit, 6 a separate organization organized under the auspices of New 7 Hampshire Yankee, but independent of them.
8 I have a Panel up here which has two people who 9 work at New Hampshire Yankee. Actually, one consultant who 10 works there. And I have another member of the Panel who 11 holds himself out to be a ORO member.
12 Now it seems to me it would make somewhat of a 13 difference in my approach to the cross-examination if I know 14 that I am cross-examining a Panel that is essentially 15 looking from the outside in making observations about the 16 ORO, or whether I am cross-examining a Panel who essentially 17 is speaking for the ORO and can make commitments for how the 18 ORO in fact would respond as opposed to opining' how, 19 according to the plans, they ought to respond.
20 JUDGE SMITH: Is the relationship between the ORO 21 and the owners, the Applicants in this case --
22 MR. FIERCE: There is a relationship.
l l
JUDGE SMITH: -- is that set out in the testimony?
23 l
24 25 f
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' REBUTTAL PANEL NO. 21 - CROSS 23605 1 MR. TIERCE: No , it is not.
rs 2 JUDGE SMITH: What is the relevance of that to the
) )
3 testimony?
4 I don't see the relevance.
MR. FIERCE: It is relevant to my. cross-5 6 examination, Your Honor.
7 Again, it seems to me it makes a difference 8 whether I'm cross-examining the entity itself --
9 JUDGE SMITH: Well, explain the difference?
10 MR. FIERCE: New Hampshire _ Yankee, as you 11 understand it, is a division of Public Service Company of 12' New Hampshire. Under their auspices they have created what 13 they are describing as a nonprofit organization separate and 14 independent from them.
15 JUDGE SMITH: Is that an issue raised in this 16 testimony?
17 Is the issue of the separate nonprofit nature of 16 ORO an issue raised in this testimony?
19 MR. FIERCE: I think it's evident from the 20- testimony that they're offering certain opinions about the 21 ORD. I'm trying to understand whether this is coming from 4
22 the outside or from the inside, that's all.
7UDGE $MITH: You're trying to establish a 23 24 possibi;.ity of bias?
25 MR. FIERCE: No.
-(
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REBUTTAL PANEL NO. 21 - CROSS 23606 1 I want to know what the perspective is that this 2 panel is giving to the ORO. Are they speaking for the ORO 3 or not? It's a simple point.
4 JUDGE SMITH: A mistake has been made, I know, and 5 I see a pattern here.
6 Very often the Massachusetts Attorney General 7 presents a panel of witnesses and they will identify their 8 testimony and they will say, is this the testimony you wish 9 to present. And the f act is, very often a witness doesn't 10 even wish to present any testimony. It's the party who is 11 presenting the testimony.
12 And if that's the nature of your inquiry, I don't 13 see what it does except that you want to know -- I used the 14 word " bias," and you want to know, and take it in a 15 nonpejorative way, you want to know their orientation.
16 MR. FIERCE: Exactly.
17 I want to know their orientation and their 18 perspect!ve and whether when they say, the ORO will do X, 19 they are speaking for the ORO or that is an opinion that the 20 ORO will do X. That's the distinction I see here.
21 MR. LEWALD: That can be taken up with an 22 individual question, not a broad question.
23 JUDGE SMITH: Yes.
i 24 Mn. LEWALD: If we had a panel member who was also j i
25 a fireman, you're not going to interrogate whether or not he i
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REBUTTAL PANEL NO. 21 - CROSS 23607-- q
" 1 is here as a fireman. _
2 JUDGE SMITH: Make a very limited inquiry to their concept o' how they fit into the organization. Just for 3
4 that.tackground purposes.
5 BY MR. FIERCE:
S Q- Well, other than Mr. Robinson is there anybody on 7 the panel who is a member of the ORO?
8 A (Callendrello) I am'a member.
9 Q You are a member.
10 What is your position, Mr. Callendrello?
11 A (Callendrello) I'm one of the assistant offsite 12 response directors for response implementation.
13- 0 Which team is that on?
.s 14 A (Callendrello) The blue team.
15 Q The second string team?
16 A (Callendrello) The third team.
17 Q Third team, excuse me.
18 The views that you and Mr. Robinson are expressing 19 on the ORO and the SPMC, are those your views, Mr.
20 Ca11endre11o?
21 First, as a planner at New Hampshire Yankee or as 22 a member of the ORO cr both?
23 MR. LEWALD: I'm going to object to that form of 24 the question. The views that he is expressing on the SPMC?
JUDGE SMITH: Givo me a legal reason for your 25 Heritage Reporting Corporation
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REBUTTAL PANEL NO. 21 - CROSS 23608 objection, not because you don't like it. Give me a legal 1
2 reason.
3 MR. LEWALD: It's just too broad, Your Honor.
4 We've got an SPMC and asking this witness for his views with 5 respect to it; it's just so broad that we could go on 6 forever if he --
7 JUDGE SMITH: Well, we will go on forever if you 8 don't let him ask his couple of questions and get it done 9 with.
10 He can inquire as to their perspective.
11 Go ahead. Get over with it; you are just wasting 12 time.
13 MR. FIERCE: I hoped --
14 JUDGE SMITH: It's a pointless examination, I 15 agree with you, except you do have a right to establish what 16 their perspective is as far as their testimony is concerned.
17 MR. FIERCE: But you're pushing this right to the 18 absurd. We know what their relationship between ORO and New Hampshire Yankee, unless you've got a particular point. And 19 20 if you don't, move on. If you do, get to it.
21 MR. FIERCE: My question --
22 JUDGE SMITH: We're nat aware of the point yet.
23 MR. FIERCE: My questions will be shaped as I 24 proceed turough the cross-examination by the perspective 25 that I see this panel has brought.
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REBUTTAL PANEL NO. 21 - CROSS 23609 1 Now, if they're telling me they are not speaking p- ~s for the ORO in any official capacity, then I will be very
( ,) 2 3 pleased to know that and move on.
4 JUDGE SMITH: Go ahead, get your inquiry over.
5 BY MR. FIERCE:
6 0 Is that the tase, that you are not speaking 7 officially for the ORO in your testimony here today but are 8 here as Applicants' witnesses in your capacities as planners 9 at New Hampshire Yankee, and in Mr. Robinson's case in his 10 capacity as a knowledgeable person about Massachusetts civil 11 defense and public health?
12 JUDGE SMITH: Well, are those alternatives --
13 BY MR. FIERCE:
s 14 Q Or are you speaking in both capacities?
. /
15 MR. LEWALD: Do you understand the question?
f 16 THE WITNESS: (Callendrello) I'm afraid I don' t.
17 I can't separate --
18 JUDGE SMITH: You don't understand the question, 19 you don't have to answer it.
20 BY MR. FIERCE:
21 Q Have you been specifically authorized by the 22 director of the ORO to speak for the ORO here today, Mr.
23 Callendrello?
24 (Long pause) 25 JUDGE SMITH: Did somebody say you can Ocme to the Heritage Reporting Corporation
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l REBUTTAL PANEL NO. 21 - CROSS 23610 l 1 hearing and commit for ORO?
2 THE WITNESS: (Callendrello) The ORO, in my mind 3 -- I am here as a representative of New Hampshire Yankee and 4 a representative of the Applicants, and to that extent I can 5 speak for the Applicants and New Hampshire Yankee.
(i To the extent that that carries over to 7 commitments that are made in the SPMC or to the implementing 8 organization ORO, yes, I can speak and make those 9 commitments.
10 JUDGE SMITH: I think you' re making a distinction.
11 You' re assuming a distinction that I'm not aware exists yet.
12 It hasn't been established yet.
13 And I assume you have information that there is 14 such a distinction.
15 MR. FIERCE: I certainly do; it came in answers to 16 interrogatories. And maybe I'll just ask the panel.
17 BY MR. FIERCE:
18 Q Is it the case that the ORO, in fact, is a 19 separate nonprofit organization, legally independent from 20 New Hampshire Yankee?
21 A (Callendrello) I don't know about the nonprofit 22 status. It is a separate organization.
23 New Hampshire Yankee is the organization the.t is 24 responsible for developing and maintaining the emergency 25 plans, facilities, and staffJnq of the offsite response Heritage Reporting Corporation ,
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REBUTTAL PANEL NO. 21 - CROSS 23611 1 organization.
W The offsite response organization.is a volunteer.
( 2 3 organization comprised of individuals from many companies-4 and other organizations and is responsible for implementing ,
i S the SPMC. l That is the-distinction, as I said. j
.6
? Q But it is an independent voluntary organization, 8 as you just stated?
~9 A (Callendrello) It is independent in its l 10 implementation.
11 To the extent that the plans are maintained; that the facilities are owned, leased, or maintained by New l 12 13 Hampshire Yankee, it is New Hampshire Yankee that controls 14 the SPMC and its development and maintenance.
15' But the ORO is the implementing organization. j l
Just to wrap it up. l 16 Q 17 Mr. Robinson, have you been designated by anyone 18 officially in the ORO to come and speak for it today?
19 A (Robinson) No, I haven't.
20 0 Okay.
21 MR. FIERCE: I think maybe this would be a good j ,
time -- let ne lay a fcundation first. l 22 !
23 BY MR. FIERCE:
l 24 Q Throughout the testimony there is repeated .l 25 reference to a cordes of inter 2ogatory answern of the Mass l
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l REBUTTAL PANEL NO. 21 - CROSS 23612 l
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1 AG to the NRC Staff's third set of interrogatories and they l
2 are quoted extensively throughout your testimony.
3 Isn't that correct?
4 A (Callendrello) Yes, it is.
1 5 Q And in particular, it is answer to interrogatory l 6 No. 2 of the NRC Staff's third set.
7 I see quotes from that on various pages, 8 particularly in pages 11 through 23 of your testimony.
(Callendrello) 9 A Yes.
10 Those are answers to interrogatory No. 2. The 11 response is actually dated December 19th, 1988.
12 Q In many instances you did not quote the entire 13 answer to interrogatory No. 2 which is broken into an 14 agency-by-agency response; isn't that correct?
15 A (Callendrello) That's correct.
16 MR. FIERCE: Your Honor, at this time I would like 17 to offer into evidence the entire interrogatory answer for 18 interrogatory No. 2 of the Mass AG's answers to the NRC 19 Staf f' S third set. And I have those copies here.
20 (Documents proffered to all parties.)
21 JUDGE SMITH: Do you object?
22 MR. LEWALD: I have no objection, Your Honor.
23 For the convenience of the Board we would make 24 them available, in any event.
25 JUDGE SMITH: This will be Massachusetts Attorney Heritage Reporting Corporation (202) 628-4888 I
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REBUTTAL PANEL NO. 21 - CROSS 23613
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1 General Exhibit 109.
i 2 (The document referred s s) to was marked for 3
4 identification as 5 Mass AG 109.)
6 THE WITNESS: (Callendrello) Mr. Fierce?
7 BY MR. FIERCE:
8 Q Yes.
9 A (Callendrello) We also use responses -- and I'm 10 not sure if ~ it's in the document that you've just 11 distributed -- to -- I'm looking for the date here. But 12 it's entitled, " Massachusetts Attorney General second 13 supplemental response to NRC Staff's first set of
,s 14 interrogatories and first request for documents." And I
/
) believe this is the document -- the response to the document l k _/ s 15 ,
i 16 production that talks about the resources -- the personal 17 resources. We also rely on those.
18 O Right.
19 And to the extent as we go through the cross-20 examination this morning where there may be some area that 21 needs to be supplemented, I think we can handle it directly 22 without offering the entire document.
23 JUDGE SMITH: Massachusetts Attorney General
?
24 Exhibit 109 is received.
25 I
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REBUTTAL PANEL NO. 21 - CROSS 23614 1 (The document referred 2 to previously marked for 3 identification as 4 Mass AG Exhibit 109, and 5 received in evidence.)
6 JUDGE SMITH: Would this be a good time for our 7 morning break?
8 MR. FIERCE: Sure.
9 JUDGE SMITH: All right, 10 minutes.
10 (Whereupon, a recess was taken.)
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
REBUTTAL PANEL NO. 21 - CROSS 23615 1 JUDGE SMITH: We're on the record.
7 i 2 BY MR. FIERCE:
)
\/m 3 O Does the Panel have copies of your own testimony 4 in' front of you?
5 A (Callendrello) Yes, we do.
6 Q on page 3 of your testimony, in the middle of the 7 page, there is a sentence which is quoted from Applicants' 8 Exhibit No. 57, which I believe is the Comprehensive 9 Emergency Management Plan for Massachusetts, thrt reads as 10 follows: " Coordinating the preparation and execution of 11 contingency plans of local governments and state agencies so 12 as to carry out the recommendations of the commissioner of 13 public health is the responsibility of the secretary of 14 public safety."
,n
(% 15 I understand that that sentence is in the exhibit l
16 as quoted. But does the Panel know whether in fact that 17 responsibility has been carried out for Seabrook?
18 A (Callendrello) It was carried out. There are 19 several levels of plans or layers of plans that we have 20 discussed. There's the Comprehensive Emergency Response 21 Plan, which is a statewide plan for all hazards. So to that 22 e~ tent, the plan for Seabrook exists on a generic state 23 level.
24 One of the appendices to that, or one of the 25 sections of that is the Radiological Emergency Response 1
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l REBUTTAL PANEL NO. 21
- CROSS 23616 1 Plan, and that too is a statewide generic plan. So to that 2 extent, it is applicable to Seabrook as it is to any site 3 that affects the Commonwealth of Massachusetts.
4 There was developed and progress made on a section 5 of that, Section C-3, which was the Seabrook-specific 6 portion of the Radiological Emergency Response plan. There 7 was progress and active planning on that section until April 8 1986. It's my understanding that there has been no further 9 progress on developing those plans.
10 And as far as the local plans go, there were local I
'11 radiological emergency response plans. Again, progress in 12 updating those plans stopped in 1986. But there are other 13 local plans which may be part of the Comprehensive Emergency 14 Response Plan. I believe the SARA Title III plans are, 15 although I'm not 100 percent certain whether that's a 16 specific annex or appendix of the Comprehensive Emergency 17 Response Plan.
18 So to that extent, yes, there are Seabrook-related 19 generic plans, and Seabrook-specific plans.
20 0 But the Panel doesn't dispute that as of April 21 ' 8 6, at least as of that date the secretary of public safety 22 ceased activity with respect to further preparation of plans 23 for local governments and state agencies for Seabrook.
24 At lease in terms of that site-specific plan, it 25 would be that portion of the RERP, the Radiological Heritage Reporting Corporation (202) 628-4888 I
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REBUTTAL PANEL NO. .21~- CROSS
'23617 l' Emergency Response _ Plan that Massachusetts does have. ;
y
- (;~- 2; A1 (Callendrello) It went actually a couple of l further. The implementation of the planning wasf
-l 3 months l l
4 stopped in,.I believe, June of'1986. So it was just a And- !
5 couple of months further that activitiesJcontinued on. i 6 then in September 1986, the governor announced his formal l 7 withdrawal from the planning process. So'that's about the l I
right time frame. l 8
9 Q Just to be clear. l
.i 10 There are site-specific portions'of the l 11 Comprehensive Emergency Response plan'and the Radiological- J 12 Emergency Response Plan for Pilgrim and for Vermont Yankee !
13 and for Yankee-Rowe, correct?
I think Mr. Robinson is --
~
- ~14 A (Callendrello)
\ 15' A (Robinson) Yes, there are.
16 Q There is not such a plan in existence currently 17 for Seabrook, correct?
18 A (Robinson) Well, I would say that, with regard to 19 the radiological monitoring, the Department of Public Health 20 plans, they are, in fact, in existence as part of the state 21 radiological response plan.
22 All the actions that would be followed by the 23 Department of Public Health are identified in the state l 24 radiological response plan that would be applicable to 25 Seabrook.
1 Heritage Reporting Corporation (202) 628-4888 i
REBUTTAL PANEL NO. 21 - CROSS 23618 1 Q But up on the shelf down at the Department of 2 Public Safety, when you are lookina for the volumes that are 3 the appendices to the comprehensive emergency plan for each 4 of the nuclear sites, there is not one like there is for the 5 others for Seabrook?
6 A (Robinson) That would be -- (pause) -- C-3, or 7 something?
8 A (Callendrello) That's not true.
9 I know that the 1986 plans at least were there 10 when I visited their headquarters. So that those plans, the 11 1986 versions of the plans are in the civil defense 12 headquarters.
13 Q When did you visit the headquarters?
14 A (Callendrello) December 1988.
15 Q Which office were you visiting?
16 A (Callendrello) I was in the operations room.
17 0 You are not saying, are you, Mr. Callendrello, 18 that that plan has been updated throughout the period since 19 1986, and in fact is the official plan of the Department of 20 Public Health and the MCDA, Massachusetts Civil Defenso 21 Agency?
22 A (Callendrello) You are mixing two different 23 organizations.
24 That plan, to my knowledge, has not been -- that 25 plan being the Radiological Emergency Response Plan for Area Heritage Reporting Corporation (202) 628-4888
REBUTTAL PANEL NO. 21 - CROSS 23619 1 1 and the six community-specific plans -- to my knowledge,
,3 2 has not been updated since 1986, since April of 1986.
l
(
V) 3 The Department of Public Health plan is, as I 4 understand it, contained in the Nuclear Incident Advisory l
5 Team Handbook, the NIAT Handbook that was discussed 6 yesterday. And that document is continually updated, and 7 does cratsin Seabrook-specific information as well as other 8 radiological emergc.cy-specific information, and is a 9 current document.
10 Q But what you saw in the operations room was not a 11 current document, correct?
12 A (Callendrello) It was the April 1986 document.
13 It is current in light of the interrogatory responses that 14 says that that is the document that the Commonwealth would
/3 15 use.
16 Q I believe instead of saying that "it would use",
17 it would look to.
18 Isn't that the language that's used?
19 A (Callendrello) If you give me a moment, I'll get 20 it.
21 Q At least for MCDA?
22 A (Callendrello) I'll get the interrogatory 23 response.
For state police, you are correct. It says, 24 25 "Because no current plan exists for a radiological emergency Heritage Reporting Corporation 3
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REBUTTAL PANEL NO. 21 - CROSS 23620 1 at Seabrook, state police office would look toward the RERP,
)
2 Appendix III, Section C-3 of Area 1 MCDA Operations Plan 3 for Seabrook Station (dated April 1986) for guidance.
4 Q And on page 5, under MCDA, the second sentence 5 also reads, does it not, "MCDA would look to the CERP for 6 guidance"?
7 A (Callendrello) And that's what makes me feel that 8 the RERP -- if the Commonwealth is placing the RERP in the 9 same status as the CERP, in terms of it will look to that 10 for guidance, then that indicates that is the current plan.
11 As I indicated, the CERP or the comprehensive plan 12 is the plan that represents a response to any type of 13 hazard. It's the generic plan, generic emergency response 14 plan for the; Commonwealth, of which radiological emergencies 15 are one aspect.
16 Q I think our only problem here is your use of the 17 word " correct".
18 In fact, it's an old plan that they would look to.
19 It hasn't been updated or kept current in that sense of the 20 term. But in your sense, it is the -- as the interrogatory 21 says, it is the plan that they would look to now. And if 22 you want to use the word " current" for that, then I think we 23 are clear.
24 JUDGE COLE: I think you had better ask him a 25 question then because I don't know if your testimony is Heritage Reporting Corporation (202) 628-4888
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REBUTTAL PANEL NO. 21 - CROSS 23621 1 going to count. You had better ask him about that.
l I 2 BY MR. FIERCE:
w J' 3 0 Is that what you are saying when you say 4 " current"?
5 A (Callendrello) No. My understanding, if you look 6 on page 5 of the interrogatory responses, that MCDA would 7 look to the CERP for guidance.
8 It's my understanding, and this was supported by 9 the document production, that the version of the CERP, the 10 Comprehensive Emergency Response Plan that was provided to 11 us, was the current version. And that is the document that 12 MCDA would in fact look to. There is no other version of ,
i 13 the CERP.
,- 14 Q What is Appendix III, Section C-3 an appendix to?
I don't know what Appendix II is.
15 A (Ca11endre11o) 1 1
16 Q No. What is it an appendix to.
17 A (Callendrello) Oh, I'm sorry.
18 0 Appendix III, Section C-3, your Exhibit 55A.
19 A (Callendrello) That is an appendix,to the 20 Comprehensive Emergency Response Plan.
21 Q All right. That aspect of the CERP is not a 22 current plan, correct?
23 A (Callendrello) I don't think I can answer that 24 question.
25 My definition of " current" is, is it the document Corporation
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REBUTTAL PANEL NO. 21 - CROSS 23622 1 that would be used. And in light of the interrogatory 2 responses, it's the document that would be used, and 3 therefore it is the current plan. I know of no other later 4 version that the Commonwealth has indicated it would use.
5 Q But that document has not been updated since 1986, 6 correct?
7 A (Callendrello) That is correct.
8 Q All right. The CERF, your Exhibit 57, is not only but 9 a plan that the Commonwealth would look to for Seabrook, 10 in fact is a current document that has been updated as 11 necessary over the years.
12 A (Callendrello) Well, actually, I think the date 13 on the CERP is earlier than the date on the RERP.
14 I think it's 1985 on the CERP.
15 Q You may be right.
A (Caller.drello) So it of older vintage than the 16 17 RERP.
18 Q Are you aware that there may be amendments since 19 1984 to that document, or not?
20 A (Callendrello) Well, I would have to check with 21 Mr. Trout. But I know he had requested the latest version 22 of all of these documents. And I'm sure he provided --
23 Q You've got the documents'. Your information comes 24 from Mr. Trout on this?
25 A (Callendrello) The documents were requested by Heritage Reporting Corporation (202) 628-4888 I
REBUTTAL ~ PANEL NO. 21 - CROSS 23623-1 Mr. Trout through'the discovery process. In some. cases, I t%: accompanied him to firsthand look at documents or request 2-()
copies. And in other cases, I didn't accompany him.
But on 3'
4- the. visit that I was there, we were provided the CERP to 5 look at-and. requested a copy of it. And to my 6 understanding, it was represented to us as the most current 7 version of the Comprehensive Emergency. Response Plan, and'it 8 was. dated 1984.
9 Q on page 4 of the testimony, in the first full 10 paragraph there is a sentence that reads, "The development 11 of a Comprehensive Emergency Response Plan, Appendix III, 12 the Hazard-Specific Supplement 6 of the CERP, was initiated 13 in 1975 to provide guidance to state and local officials for responding to radiological emergencies at Pilgrim, Yankee-14 O
,(j- 15 .Rowe and' Vermont Yankee."
16 But not Seabrook, correct?
17 In 1975, they would not have been --
18 A (Callendrello) That is correct.
19 0 On the next page, there is a reference in the 20 first full paragraph, the short one, that local communities 21 were the recipients of copies of the RERP as well as area 22 and local plans in December of 1979.
23 How do you know that all the EPZ communities 24 received the RERP and local plans in '79?
25 A (Callendrello) If you look at Attachment --
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REBUTTAL PANEL NO. 21 - CROSS 23624 1 Q Is that from Attachment A?
(Callendrello) i 2 A Yes, 3 Q Okay. So your knowledge comes from Attachment A.
la A (Callendrello) That's my knowledge. Mr.
5 Robinson, I think, may have some other independent 6 knowledge.
7 A (Robinson) Yes, I believe that the CERP was used, 8 as it states in here, as the basis document upon which the 9 RERP went on to specify the actions that would be taken in a 10 radiological emergency as a distinct emergency planning 11 activity, where the RERP covered the issues of establishing 12 emergency planning zones. It established the protective 13 action recommendations and all the planning that goes into 14 the radiological response process.
15 And to the best of my knowledge, back in 1979, 16 that was used for Yankee and Vermont Yankee as one of the 17 basic planning documents.
E18 Q Were there local plans distributed for Seabrook 19 EPZ in '797 20 A (Callendrello) I don't believe there were.
21 Q With respect to your reference here to Attachment 22 A, how would you describe that document, Mr. Callendrello?
23 Who prepared it and what is it?
24 A (Callendrello) Its title is fairly descriptive.
25 It's a brief history and status of Massachusetts Heritage Reporting Corporation (202) 628-4888
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o-REBUTTAL PANEL NO. 21'- CROSS -23625
~1 Radiological Emergency Response Plans dated March 1980.
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It is a document that was generated by c
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'I 2-3 Massachusetts Civil Defense Agency,_by a' gentleman there by 4 the name of Bernie.Nolan, and provided as input to a 5 cabinet-level task force established by then Governor King 6 to evaluate Massachusetts planning in light of the accident.
7 at Three Mile Island.
I 8 There were several task ~ forces created that 9 provided input to a cabinet-level task force. This was the 10 one from Civil Defense, and this was the report. f i
11 As the second page of the document indicates, it's 12 a document that provides informative -- that would provide ;
13 information to those people who are interested in 14 Massachusetts radiological emergency response planning.
15 O Do you believe everything in Attachment A is true?' ]
16 A (Callendrello) I haven't reviewed it in great 17 detail as regards to the other plans. But as regards to 18 Seabrook emergency planning process, I believe it's true.
I 19 Q Would you agree, Mr. Robinson?
20 A' (Robinson) I think it's generally descriptive of l i
21 the state planning process.
. i 22 23 l 24 25 Heritage Reporting Corporation l /~' (202) 628-4888 l(
0 REBUTTAL PANEL NO. 21 - CROSS 23626 1 Q On page 6 -- this is a small matter -- but there 2 is a word used on line item the word " prototype" is used 3 here in conjunction for Seabrook. "A prototype local plan l
{
4 was completed in October ' 83. " ]
5 Do you, in using that word, mean something other 6 than a draft?
7 A (Callendrello) It was a draft plan, but it was 8 prepared for a single community to be used as a model for 9 other communities to follow or as a model for the l 10 development of other community plans.
11 So in that I mean a single plan developed to be a 12 model.
13 Q It didn't have the implementing detail that an 14 actual local plan would have; correct?
15 The names; the phone numbers; the job titles?
16 A (Callendrello) I believe it did for the community 17 that it was the prototype for. And I offhand don't recall 18 which community it was.
19 But it did have implementing detail.
20 JUDGE SMITH: Is that the community that it was 21 the prototype for or the community whose plan served as the 22 prototype?
23 BY MR. FIERCE:
24 Q Was it an EPZ community?
25 A (Callendrello) Yes, it was.
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23627 REBUTTAL PANEL NO. CROSS l l'
To the best of my memory it was Newburyport.
A plan was worked up for l
\()N ,2 JUDGE SMITH: ;
l N.-
l 3 Newburyport, which plan became the prototype for other.
4 communities? l 5 THE WITNESS: (Callendrello) .It became a model ;
6 for others. And it would likely have had Newburyport 7 specific information in it and specific implementing 8 actions.
9 BY MR. FIERCE:
10 Q ,Were there blanks in that particular plan for i
j 11 completion by the individual towns?
(Callendrello) I don't know if there were blanks l
12 A !
13 in there or not.
14 What it would have been is, as complete as l
,s k, m 15 possible for Newburyport and the other communities would 16 take it and insert their community specific information in i Obviously, t 17 place of what was there for Newburyport.
18 Newburyport has got a city council. They wouldn't have a So it 19 city council; they wculd have a board of selectmen.
20 would be that kind of substitution of information.
21 There may not have been a blank in the plan. ;
22 O Who compiled that particular prototype? ,
Maybe I don't need to know the names, but which 23 24 entity was it? I don't need to know the individual people i
25 who drafted it. !
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REBUTTAL PANEL NO. 21 - CROSS 23628 1 A (Callendrello) It was compiled by a contractor of 2 the name of Costello, Lomasney and DiNapoli. And there ""i 3 an individual from Massachusetts civil defense working >
4 them, and offhand I can't remember the name of the 5 individual from Massachusetts civil defense. I 6 Q Mr. Callendrello, if my memory serves me right, I 7 believe you told me in a cross-examination sometime ago.that 8 Costello, Lomasney had originally -- had done an earlier ETE 9 study for Seabrook; is that correct?
10 A (Callendrello) They did an ETE study and 11 subcontracted portions of that study.
12 They did an ETE study and it was completed in 13 January 1984.
14 Q Around this same point in time?
15 A (Callendrello) Around that same point in time, 16 that's correct.
17 Q That ETE study has now been rejected; isn't it?
18 A (Callendrello) It certainly has been' superseded 19 by the work that Mr. Lieberman and KLD Associates has done.
20 I wouldn't say it has been rejected.
21 Q The work wasn't considered to be as adequate or as 22 extensive as was thought to be necessary for planning 23 purposes?
24 A (Callendrello) No, I wouldn't agree with that.
25 0 Why was there further effort, at least on the part i
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REBUTTAL PANEL NO. 21 - CROSS 23629 1 of the Commonwealth officials, to have a further ETE study
) 2 done if it wasn't from the dissatisfaction with the one that U
3 was on the table at that point?
4 A (Callendrello) In the August 1985 time frame --
5 July and August 1985 time frame Mr. Boulay, who is the 6 director of the Massachusetts Civil Defense Agency, received 7 comments from some of the members in the community regarding 8 some of the assumptions of the evacuation, of the then 9 current evacuation time estimate, the Costello, Lomasney and 10 DiNapoli time estimate.
11 Because of the concern raised by the communities, 12 Mr. Boulay, Director Boulay, contacted New Hampshire Yankee 13 and requested that we in turn contract for an organization 14 to develop an evacuation time estimate that would satisfy
\ 15 the concerns of the communities.
16 Mr. Edward Brown, the President of New Hampshire 17 Yankee, agreed to that request and in turn ultimately 18 contracted with KLD Associates to operate under the l l
19 technical direction of the Massachusetts Civil Defense 20 Agencies with the specific charter that they were to work 1 21 directly with the communities to resolve any concerns they receive their input in developing the traffic 22 had, 23 management plan, and to develop the evacuation time l l
24 estimate.
25 Q I think that's a pretty long answer to say that Heritage Reporting Corporation
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REBUTTAL PANEL NO. 31 - CROSS 23630 1 the communities were unhappy with the Costello and Lomasney i 1
2 ETE study, isn't it? l 3 A (Callendrello) Some communities were. l l
4 Q And this is the same organization that developed j 5 the prototype local plans?
6 A (Callendrello) That's correct.
7 Q On page 7, Panel, in the last sentence of the 8 paragraph that ends at the top of the page there's a 9 sentence that reads: "These are the April 1986 plans 10 referred to by the Commonwealth in its response to the NRC 11 Staff's third set of" -- just to be clear.
12 As you can tell from looking at the interrogatory 13 answers, only some agencies refer to those plans, isn't that 14 correct?
15 State police?
16 A (Callendrello) State police did.
17 Q This is the Area 1 MCDA plan we are talking about?
18 A (Callendrello) Yes, that's correct.
19 Q Almost?
20 A (Callendrello) That's correct.
21 Q All the other agencies referred to other sources; 22 correct?
23 A (Callendrello) That's correct.
24 Although, they refer to the CERP. And as I 25 explained earlier, the RERP is part of the CERP.
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'l -Q' But this particular volume,.this Appendix-3, Section C-3 is the Area 1, MCDA plan?
I) 2' 3 A (Callendrello)' That's correct.
4 Q Down below that'a couple of, lines there is 5 reference to training of Area 1 and local responders was 6 ongoing during that period.
7- And that. period is -- if I read your testimony
~8 correct -- a period that ends in 1986.
9 When did that period begin?
10 Would that be roughly what, ' 83 to ' 867 11 A (Callendrello) No.
12 That would have been the period of December 1985 13 until March of 1986.
14 Q So only a four month period, roughly?
15 A (Callendrello) That's right.
\
16 O Do you know how many of those persons who were 17 trained at that point in time are still in place in those 18 response organizations? !
19 A (Callendrello) No , I don't know.
20 I know some of them are; I just don't know the l 21 number, 22 O And no similar training has been conducted there 23 for over three years now; correct? i 24 A (Callendrello) I can't say what training they.
25 have received as regards to other emergency response i
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REBUTTAL PANEL NO. 21 - CROSS 23632 1 planning. New Hampshire Yankee nor its contractors, and my 2 understanding, civil defense has not provided any 3 radiological emergency response planning -- Radiological 4 Emergency Response Plan training.
5 0 As long as we're talking about training ve should 6 also mention drills and exercises; there hasn't been any of 7 that either, has there?
8 A (Callendrello) There have been general disaster 9 drills.
10 0 On radiological emergency response?
11 A (Callendrello) I don't think there have been any.
I don' t know of any. j 12 13 Again, specific to those six communities. There 14 have been, of course, exercises of the Radiological 15 Emergency Response Plan for the Commonwealth for the other 16 sites that affect the Commonwealth.
17 Q On page 8, on the third line there is a sentence 18 that begins: "A draft of the plan,"
19 Do you see that sentence?
20 A (Callendrello) Yes, I do.
21 Q It refers to a compensatory plan that 22 Massachusetts had begun to draft on behalf of one or more 23 municipalities if they were unable to function, were not 24 going to be functioning.
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23633-REBUTTAL PANEL'NO. 21 - CROSS 1 seriously here.that'the state now has a usable compensatory.
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$ 2- plan for. responding to a Seabrook emergency in an EPZ 3 community which is unable to function or refuses to do so?
L It was certainly usable at the 4 A '(Callendrello) 5 time that it was developed, b 6 The compensatory plan, as we refer to it here, 7 described the actions to be taken by the Area 1 organization 8 to fully or partially support any community.in the Seabrook 9 EPZ that was unable or unwilling to' respond.
10 And it contains community-specific information 11 regarding transportation needs, traffic control points,
'12 communication aspects of it. Some portions of that plan are
.13 still current.
The traffic control points have changed very
~~g .14 little from that document to what's currently contained in
\ 15 the SPMC.
16 The transportation needs, some are current and 17 some are not current.
18 O There are some changes in the traffic control 19 points?
20 A (Callendrello) Yes, there are.
21 0 One of them happens to be at our old friend the intersection at I-95 and Route 110, isn't it?
22 23 Isn't that true?
24 A (Collendrello) Yes, I think that's one of them.
25 Yes, I'm sure that's one of them.
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REBUTTAL PANEL NO. 21 - CROSS 23634 1 Q That draft plan has not been updated, tested, l
2 drilled, or exercised in any way since 1986, has it?
3 A (Callendrello) No. I i
1 4 Q A draft compensatory plan?
5 A (Callendrello) I know of no test of that and I 6 know of no update to that plan.
l 7 Q On the first --
8 MR. FIERCE: Excuse me.
9 (Counsel confers.)
10 BY MR. FIERCE:
11 Q In the first sentence of section B, which is at 12 the bottom of page 8, there's a sentence which reads: "The 13 Commonwealth of Massachusetts has been prepared to respond 14 to a radiological emergency for over a decade."
15 You're not suggesting here they have been prepared 16 to respond to a radiological emergency at Seabrook for over 17 a decade?
18 A (Robinson) I would say that there is'no 19 difference between responding -- for the state to respond to 20 a radiological emergency at Seabrook as it would at Yankee 21 or Vermont Yankee or Pilgrim.
22 The plans are the same. The basic response would 23 be essentially the same for Seabrook or Yankee or Vermont 24 Yankee.
25 Q Except that there is not a current up-to-date Heritage Reporting Corporation (202) 628-4888
REBUTTAL PANEL NO. 21 - CROSS 23635 1 -tested and exercised. Area 1 MCDA plan, is there?
2 'A. (Robinson) The radiological response would be 3 handled under the state plan'which has been tested 4- approximately 12 times at exercises at' Yankee, Vermont
,5 Yankee and Pilgrim.
6 0 Using different emergency responders?
7 A (Robinson) Essentially they're the same. The 8 state -- this would be the response provided by.the State 9 Department of' Health. It's the same people that would be 10 responding to Seabrook that respond to the other plants.
11- Same procedures.
12 0- High level officials in the Department of Public 13 . Health, Civil Defense Agency, still operate their posts at 14 their state headquarters,,that's true.
15 But when you move from nuclear plant to' nuclear 16 plant in the field and regionally, there are different 17 -personne1~in those agencies who are responsible for 18 responding; isn't that true?
19 A (Robinson) No.
20 With the radiological response provided by the 21 Department of Health it's the same staff of people, 22 basically, that would respond.
23 The NIAT teams are set up. They would be the same 24 people that would respond to any of the nuclear plant 25 emergencies. I Heritage Reporting Corporation O (202) 628-4888
REBUTTAL PANEL NO. 21 - CROSS 23636 1 Q Well, I understand there is a NIAT pool of people.
2 I also understand that location and response time may 3 determine who gets selected to be on the first team?
4 A (Robinson) Well, I think if you look at the NIAT 5 procedures you will see that it is set up to dispatch people 6 from Boston, from the Tremont Street office, from other 7 areas within the state. If there was a radiological 8 emergency, people from all over the state would respond to 9 that one emergency location. They would use the entire 10 resources at the Department of Health. And these people 11 have been trained to respond to the other emergencies.
)
12 Q Isn't it in fact true that none of the other
(
13 agencies are set up in that way, that the Department of l
14 Public Health is?
15 And that you have a unique situation with the 16 Department of Public Health?
17 A (Robinson) No, I wouldn't necessarily agree with 18 that.
19 I think the comprehensive plan for Massachusetts 20 lays out the basic response of all the major state agencies.
21 For the state police, for example, to respond to an 22 emergency whether it's out in Area 4 or Area 1, they would 23 generally follow the procedures that they use in every day 24 course of business.
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REBUTTAL PANEL NO. 21 - CROSS 23637 1 or in those plans and in those drills and in those i 2 exercises, while they may gain the experience and the
(
3 knowledge and the working skills needed, up in Area 1 those 4 state troopers aren't involved; correct?
5 A (Robinson) That's probably the case.
6 Q We would have a patchwork quilt of preparedness in 7 Massachusetts with respect to the state policy in nuclear 8 response; isn't that true?
9 A (Robinson) No, I still disagree with that.
10 11 12 13 14
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l REBUTTAL PANEL NO. 21 - CROSS 23638 1 A (Robinson) (Continued) The state police and the 2 Department of Fuhlic Works, we just talked about the 3 Department of Health, they have basic procedures that they 4 will be following under the comprehensive response plan.
5 And so I don't see that it's a case where they are totally 6 unaware of what their response would be.
7 O I'm not saying totally unaware. I'm saying MCDA B still sits there in their command post in Framingham or 9 other nuclear sites when those are drilled and exercised.
10 And the state police command structure still has its plans 11 as you have indicated.
12 But when you get out to the field responders, 13 those are different, aren't they?
14 A (Robinson) The Massachusetts civil defense has 15 their, again, their functions that they provide and 16 responsibilities they provide under the comprehensive plan.
17 They have their responsibilities outlined under the 18 Radiological Emergency Response Plan.
19 And the only place that, you know, other than the 20 Supplement 3 that we've been talking about here, would be 21 say several civil defense personnel at Area 1 would not have 22 a plan other than the one, if they were to use the Appendix 23 III to the state radiological response plan.
24 Q And the state police in that portion of the state 25 that is north of Boston and probably west 50 miles has not I
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REBUTTAL PANEL NO. 21 - CROSS 23639 1 participated in nuclear preparedness drills and exercises 2 with their state headquarters as other regions of the state 3 has that are near Plc1 grim or Vermont Yankee or Yankee-Rowe, 4 correct?
5 A (Robinson) Well, I know they haven't had any 6 drills there, so that's probably correct.
7 Q On page 9, the last sentence of the paragraph that B ends at the top of the page is as follows: " Facilities and 9 equipment in place to support response to these plans are 10 equally available to support a coordinated response with a 11 New Hampshire Yankee offsite response organization during an 12 emergency at Seabrook station."
13 We're talking about facilities and equipment that 14 would be normally used for response to Pilgrim, Yankee-Rowe 15 and Vermont Yankee. It seems to me that that may be a bit 16 of an overstatement.
17 You are not seriously suggesting that a reception 18 center that has been planned for use for Yankee-Rowe or 19 vermont Yankee would be " equally available" to support an 1
20 emergency response at Seabrook Station, are you?
21 A (Callendrello) I hadn't thought about a reception before. At least that wasn't in my mind when we put 22 center 23 this together.
24 Q That is one of the facilities, key facilities, is 25 it not?
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I REBUTTAL PANEL NO. 21 - CROSS 23640 1 A (Callendrello) That is a facility. I guess I 2 don't see any reason why it couldn't be made available, and 3 would expect that the governor would make it available if it 4 was required to protect the public health and safety.
5 Q ,Sil, the question is " equally available". The 6 distance itself makes it less than equally available; isn't 7 that true?
8 A (Callendrello) Not necessarily. Some of the 9 Pilgrim reception centers may be of a distance comparable to 10 one of our congregate care centers.
11 Q So you do think it is conceivable that the 12 Conimonwealth of Massachusetts would in fact use such 13 facilities?
14 A. (Callendrel2o) Is it conceivable?
15 Yes.
16 Q So I haven't been able to dissuade you from your 17 statement about " equally available".
18 How about equally useful? Those facilities really 19 wouldn't be equally useful, would they, in a practical 20 sense?
21 (Pause.)
22 A (Callendrello) I don't understand the question 23 with the term "useful" in there.
24 I'm assuming that thes? facilities are facilities 25 that are part of the Radiological Emergency Response Plan, i
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s REBUTTAL PANEL NO. 21 - CROSS 23641 1 and as such represent the Commonwealth's thoughts on what
,\
would make an appropriate facility. They are designed for a (v) 2 radiological emergency response plan.
3 4 They are staffed, equipped to support a radiological emergency response plan. And by that 5
6 definition, they are intended to be useful for a And if needed, I would 7 radiological emergency response.
8 expect the governor would make them available, and they 9 would be useful.
10 Q But it wouldn't be prudent from a planning 11 standpoint would it, Mr. Callendrello, to have a reception 12 center in use for Seabrook that was 100 miles away?
13 A (Callendrello) I don't think that would be the 14 best location, no.
._s 4 i How would using any of those other reception
( ,/ 15 Q 16 centers " support a coordinated response with a New Hampshire 17 Yankee offsite response organization"?
18 A (Callendrello) As I indicated when you asked me 19 about reception centers, the intention of this statement was 20 to talk about state facilities and state organization.
21 What I had in mind when we wrote this was the EOC, state Department of Public Health headquarters, the 22 l
23 equipment as regards communication equipment, radiological monitoring equipment, EOC equipment. I'm trying to think 24 25 what other facilities and equipment there may be.
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k REBUTTAL PANEL NO. 21 - CROSS 23642 1 I guess, as I said, I had not mentally made the 2 leap to facilities like reception centers and congregate 3 care facilities, although I don't see any reason why they (
4 couldn' t be made available.
5 But the focus of this statement was on those state i 6 facilities and equipment that are used to coordinate 7 responses for other sites and would be available and would 8 support a coordinated response with New Hampshire Yankee and 9 its offsite response organization.
10 Q Okay. But you are not saying that all the 11 resources, the barricades that the Department of Public 12 Works has stockpiled in western Mass for us in a Vermont 13 Yankee or a Yankee-Rowe accident, or the buses that have 14 been lined up in western Mass for transportation efforts out 15 west. You are not referring to those by this statement?
16 A (Callendrello) That was not my intention, 17 although as you raise them, I don't see any reason why if 18 they are the best resource and the most timely resource, why 19 they wouldn't be used.
20 A (Robinson) I think that is a part of the 21 planning, the structure of the planning. If there is need 22 on a local level for either transportation or traffic cones 23 or whatever it might be that local resources are required, 24 they would make a request to the area civil defense office, 25 and then the state. That would be passed on to the state, l
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REBUTTAL PANEL NO. 21 CROSS 23643 q l
1 and the state would look throughout the resources of the >:
state to provide any facilities or equipment. l 2
3 So it could be something from western Mass or down .i 4 in the Pilgrim area that would be moved to-the Seabrook area f 5 if that was required. !
6 .Q But, obviously, these are resources that would not !
)
7 be available in a short period of time. q (Robinson) Not immediately available, but still 1
8 A l 9 it's part of the overall state planning effort. ;
-l 10 0 In the paragraph below, there is reference to l 11 Executive Order 144, and again this is a small point, but I ,
,J 12 do want to clarify it. There is a quote from Executive 13 Order No. 144, and I want the Panel to quickly confirm for ;
It's j 14 me that the quote here in the text is not accurate.
s 15 misquoted from Executive Order 144.
16 In the fifth line from the bottom of the page, the 17 phrase "an emergency basis" should have a period following 18 it, should it not?
j A (Callendrello) I'm sorry, Mr. Fierce, I lost t
19 i 1
20 where you were.
i 21 Q In the fifth line up from the bottom of the page 22 after the phrase "an emergency basis", there should be a ,
23 period there, should there not?
24 (Witnesses review document.) i 25 A (Callendrello) Yes, there should be a period.
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1 Q And following the period there should be a phrase, j 2 "each agency shall make appropriate plans" inserted, 3 correct?
4 Is that correct, Mr. Callendrello?
5 A (Callendrello) Hold on just one second, please.
6 (P ause . )
7 Q This comes from Item 3 of page 2 of Attachment B.
8 A (Callendrello) Right.
9 (Witnesses ccnfer.)
10 THE WITNESS: (Callendrello) Yes, there should be 11 an ellipsis between " basis" and "for" in that line.
12 THE WITNESS: (Frank) We were simply not l
13 repeating "each agency chall make appropriate plans for".
14 "An emergency basis" should be followed by three dots.
15 MR. FIERCE: All right. We have at least in the 16 record clarified the situation.
17 BY MR. FIERCE:
18 Q That sentence and that executive order is fairly ,
i 1
19 broad and means, for example, that the state welfare 20 department has to have a plan for protecting its case 21 records and for dispensing emergency welfare assistance to 22 those, say, rendered homeless by a flood or a tornado.
23 Isn't that correct?
24 A (Callendrello) I need to check to see if state 25 welfare is part of the Executive Order 144.
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REBUTTAL PANEL NO. 21 - CROSS 23645 l' (Witnesses review document.)
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,( 2 THE WITNESS: (Callendrello) I don't see the 3 state welfare department listed as an Executive Order 144 4 response agency.
5 I'm looking at Attachment 1-2 of our Exhibit 55 6 which lists the Executive Order 144 response agencies that 7 would respond in the event of a Radiological Emergency 8 Response Plan and the level at which they would respond 9 unless that Department of Welfare is under a:different 30 department that's listed here. I don't see that-11 specifically culled out.
12 O I don't have your document. Is the Executive 13 Office of Human Services listed there?
~
14 A (Callendrello) I don't see it there.
.p 15 Well, I'm only,looking at page 2 of the order
( Q 16 itself and Item 3.which begins this way. "Each secretariat 17 independent division, board, commission and authority of the 18 Government of the Commonwealth, here and after referred to 19 as ' agencies', shall make appropriate plans for the 20 protection of its personnel, equipment, supplies," et 21 cetera.
22 It's broadly construed. It's a broad statement 23 that looks to be all-inclusive of Massachusetts governmental I'
24 agencies, does it not?
25 A (Callendrello) Yes, it does.
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REBUTTAL PANEL NO. 21 - CROSS 23646 1 And again, I refer you to Exhibit 55 to show how 2 it's interpreted for radiological emergency response 3 planning.
4 Q 'Which attachment?
5 A (Callendrello) It's page A-10. It's Attachment 6 1-2.
7 Q Page A-10 of this --
8 A (Callendrello) Of Exhibit 55.
9 0 Of 55?
10 JUDGE SMITH: Exhibit 55.
11 THE WITNESS: (Callendrello) Exhibit 55.
12 MR. FIERCE: I'm just having trouble finding that 13 page.
14 JUDGE SMITH: Would you give him the global page 15 number?
16 MR. LEWALD: Do you have a global page?
17 THE WITNESS: (Callendrello) Oh, global page No.
18 210.
19 MR. FIERCE: Oh, that's helps.
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REBUTTAL PANEL NO. 21 - CROSS 23647 2
l JUDGE McCOLLOM: What is Exhibit 55?
i 2 :THE WITNESS: (Callendrello) That's the v
3 Radiological Emergency Response Plan and it is subtitled,
" Appendix 3 to Hazard-Specific Supplement No. 6." It has 4
5 got the state seal on the front page.
6 (Pause) 7 BY MR. FIERCE:
8 Q Well, this is not a major point, and I don't think 9 it is worth the time that we are spending on it.
10 I just wanted to note that the language in the 11 Executive Order was very broad.
12 The exhibit that you have pointed us to is 13 interesting because it is the Seabrook Station matrix of 14 response for certain agencies.
15 I think we just need to clarify that, at least 16 with respect to Seabrook, Panel, it is pretty clear, isn't 17 it, that Executive Order 144 has been superseded by the 18 governor's declaration in 1986 not to engage in'further 19 planning for Seabrook?
20 A (Callendrello) I don' t agree with that.
21 Again, the Comprehensive Emergency Response Plan 22 remains in force and that's exhibit 57, global page 21 of 23 that talks about specific assignments for state agencies.
24 It says: "Such assignments are made under the provisions of Executive Order 144." And then proceeds to go 25 Heritage Reporting Corporation
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REBUTTAL PANEL NO. 21 - CROSS 23648 1 down the state agencies and describe what their 2 responsibilities are.
3 Q You're going to have to give it to me again.
4 A (Callendrello) It's Exhibit 57.
5 0 57.
6 A (Callendrello) Global page number 21.
7 (Pause to review document. )
8 THE WITNESS: (Callendrello) In answer to your 9 earlier question, I do see that there is a description of l 10 the role of the Department of Public Welfare, that they 11 assist in the staffing of disaster assistant centers.
12 BY MR. FIERCE:
13 Q As would the Department of Mental Health assist in 14 the staffing of that disaster assistant centers?
15 A (Callendrello) That's correct.
16 Q And Elder Affairs assumes the maintenance and 17 restoration or restoration of continuity of the area 18 Agencies on Aging?
19 A (Callendrello) That's correct.
20 It even has the Attorney General's office in here 21 I see.
22 (Laughter.)
23 Q That's right.
24 Legal assistance and services to disaster victims.
25 We'll be there.
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REBUTTAL PANEL NO. 21 - CROSS 23649 1 But what-we're looking at.-is a list of. agency 2 functions after a disaster that would step in -- agencies
- 3. that would step in and perform functions in response to the 4 . remains of the disaster.
5 This is not planning for the disaster, is'it, Mr. l 6 Callendrello?
7 A (Callendrello) I don't think that's correct.
8 For example, if you look on page 26, global page 9 26 under the Department of Public Health.
10 MS. GREER: 57 or 55?
11 THE WITNESS: (Callendrello) 57. ;
12 MS. GREER: Page?
13 THE WITNESS: (Callendrello) Page 26, global page j 14 26 lists as one of the duties for the Department of Public p
15 Health: " Monitors radiation levels and is responsible for 16 combating radiation emergencies." ;
)
17 Also, on page 28 under: "The Executive-Office of 18 Pub. Safety the Massachusetts Civil Defense Agency .l 19 receives and reviews state agency plans for incorporation 20 into functional. Annexes to this plan encourages and 21 assists in the development of local emergency response plans j 22 and programs." )
23 So those are clearly pre-emergency activities.
l 24 BY MR. FIERCE:
25 Q But there you go, right there, that has not been s I
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I REBUTTAL PANEL NO. 21 - CROSS 23650 1- accomplished by MCDA for Seabrook, has it? i 2 A (Callendrello) It was accomplished, but it has 3 not been carried forward since 1986. q t
4 Q Those plans were never formally incorporated into 5 the functional annexes, officially approved, were they?
1 6 A (Callendrello) Just so I understand. !
7 When you say "those plans," you mean the 1986 8 versions?
9 Q That's right.
10 A (Ca11endre11o) And the question is: were they 11 formally incorporated into the -- into what? I missed the 12 last part of the question.
13 Q As functional annexes into the Commonwealth's 14 emergency response plan?
15 Well, listen --
16 A (Callendrello) I don't know if they were or not.
17 I don't understand the question.
18 Q It's, again, a minor point.
19 But the point is, since 1986 the Department of 20 Public Safety has not been carrying out that function of 21 Executive Order 144 because the governor has ordered 22 otherwise; correct?
23 A (Callendrello) As it pertains to Seabrook.
24 Q As it pertains to Seabrook?
25 A (Callendrello) Specific plans. However, the Heritage Reporting Corporation
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REBUTTAL PANEL NO. 21 - CROSS 23651 1 generic l plans that would be utilized for Seabrook.would f% continue to be developed because they are as applicable to j
) 12 3 other sites as they are to Seabrook.
'4 O' But the Seabrook specific plans have not been H 5 developed by the Department of Public Safety; Department of l 6 Public Welfare; Department of Public Health; and on down the 7 list, correct?
8 A (Callendrello) They were developed. They have 9 not been updated since 1986 with the exception of the NIAT.
10 handbook. ,
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.c 11 Q Are you aware of the existence of a specific plan 12 for Seabrook for the Department of Public Welfare?
13 A (Ca11endre11o) No, I'm not aware of any specific
~s 14 plan.
( 15 It's my understanding that they would perform 16 their duties in accordance with the Comprehensive Emergency' l 17 Response Plan.
18 Q On page 10 to your testimony, you are quoting from 19 the CERP in the middle paragraph. And there is a quote in 20 the last sentence of that paragraph: " Responsibilities are 21- further developed and procedures for carrying them out are 22 detailed in the functional annexes to this state plan,"
23 that's the CERP.
24 The procedures for carrying out those i 25 responsibilities for Seabrook are in Appendix -- are in the
)
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REBUTTAL PANEL NO. 21 - CROSS 23652 1 RERP to some extent, but are in site-specific annexes 2 primarily; and there is not a site-specific annex for 3 Seabrook, correct?
4 A (Callendrello) No. The question was a 5 complicated one and it confused several terms.
6 There are functional annexes to the Comprehensive 7 Emergency Response Plan that deal with general emergency 8 response activities.
9 If you look at page 7 of Exhibit No. 57 it 10 describes what those are. I'll just read some of the 11 shorter ones: " Annex D, police services; Annex F, medical 12 services; Annex G, emergency welfare services."
13 Those are functional annexes. They do functions 14 that are performed either pre or post emergency.
15 There are appendices. If you turn to the next 16 page, page 8 of that same exhibit. There are appendices that deal with a variety of areas. Some are plans. Some 17 18 are citations. For example, the Federal Disast'er Relief Act 19 and the Massachusetts Civil Defense Act.
20 One of those, Appendix 3, is entitled " Emergency 21 Response to Nuclear Incidents, state area and local plans."
22 those are the Radiological Emergency Response Plans as we 23 have been calling them in our testimony.
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l REBUTTAL PANEL NO. 21 - CROSS 23653 (Callendrello) So the functional annexes exist. l i
1 A l
(~'3 2 They are in force, and are independent of the RERP. I
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3 O The procedures for MCDA for Seabrook are in that 4 Appendix III, Section C. That is the volume that has not 5 been updated, tested or drilled since ' 86. That's all I' m 6 saying again.
7 A (Callendrello) The procedures that would say the words "Seabrook Station" are in that volume. Again, there 8
9 are generic procedures generic to comprehensive emergency 10 response planning, generic to radiological emergency 11 response planning that are current and the state uses, and 12 are not necessarily --
13 Q I'm not disputing that.
,s 14 A (Callendrello) -- contained in that --
15 Q My point is that, I know the generic procedures 16 are there, but the specific procedures are not, correct, for 17 Seabrook?
18 A (Callendrello) In some case there may not need to 19 be a specific procedure for Seabrook.
20 Q In many case there --
21 A (Callendrello) For example, managing the 22 operations of the emergency operation center. There is a 23 generic procedure, a generic activity generic to 24 comprehensive emergency response and also generic to 25 radiological emergency response. And there doesn't need to Heritage Reporting Corporation
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REBUTTAL PANEL NO. 21 - CROSS 23654 1 be a Seabrook-specific procedure.
I'm not disputing that. But there are also many 2 Q 3 other procedures that are detailed in that volume which is a 4 good two or three inches thick.that are specific to 5 Seabrook.
6 A (Callendrello) There are a number of Seabrook-7 specific procedures in Exhibit 55.
8 (Witnesses review document. )
9 Q I think a better way to approach this is moving on 10 to the next page where we start in your testimony to trace 11 through each of the relevant state agencies. The first is 12 the state police.
13 I just want the Panel to acknowledge for me that 14 the statement here is not a complete statement of that which 15 is given in the interrogatory answers, Mass AG Exhibit No.
16 109. The state police response begins on page 2 and carries 17 on to page 3.
18 Isn't that correct, Panel?
The testimony 19 A (Callendrello) That is correct.
20 contains a portion of that interrogatory response.
21 Q Right.
22 And here it is where you are referring in the 23 first sentence to state police officials would look toward 24 the RERP, Appendix III, Section C-3 of the Area 1 MCDA 25 operations plan for Seabrook Station.
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REBUTTAL PANEL NO. 21 - CROSS 23655 1 While there may be some generic state police y
[ j 2 procedures at the highest level for those state police
\s 3 officers who are in the EOC, the detailed procedures for 4 Seabrook are in that volume, correct, for the state police?
5 A (Callendrello) Yes. And maybe a clearer way to 6 say it is the procedures that contain the Seabrook-specific 7 information are in that volume.
8 Q And that's an April '86 volume that hasn't been 9 updated, tested, drilled or exercised in the past three 10 years, correct?
11 A (Callendrello) That's correct.
12 Q And contains, for example, the KLD diagrams of 13 traffic control points and access control points?-
14 A (Callendrello) It contains the diagrams from the eN 15 KLD evacuation time estimate. And as we testified a few 16 months ago, those diagrams have changed in only a sr.all 17 fashion from what was in the KLD ETE to what is in the SPMC.
18 Q Except with some exceptions as at the intersection 19 of I-95 and Route 110.
20 A (Callendrello) That's correct. We said in that 21 testimony we added one new traffic control point, and 22 modified three others. ,
t 23 Q But specifically with respect to that traffic 24 control point, the Mass state police procedures would direct 25 all traffic onto I-95, whereas the SPMC traffic management f-'s Heritage Reporting Corporation (202) 628-4888
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REBUTTAL PANEL NO. 21 - CROSS 23656 1 plan, as it exists today, has some traffic continuing 2 straight through on Route 110.
3 Isn't that correct?
4 A (Callendrello) Again, the traffic control plan of 5 the SPMC, as we have discussed it in this proceeding, yes, 6 would have some traffic proceeding on through.
7 Q Exhibit 55 (a) is this document, and in fact that 8 diagram for that intersection is on page 303, isn't it?
9 A (Callendrello) If you would just give me one 10 moment.
11 (Witnesses review document. )
12 Q Global page 303.
13 A (Callendrello) Yes, that's the page it's on.
14 Q On page 313 there is a traffic control post 15 diagram in West Newbury for the Pentucket School, correct?
16 A (Callendrello) Correct.
17 Q Is that a traffic control point that still remains 18 in the SPMC?
19 A (Callendrello) Yes, I believe it does, or it is 20 present in the SPMC.
21 Q This particular traffic management plan has 22 nothing in it, no procedures that would delay the 23 implementation of access control, does it?
24 (Witnesses review document. )
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f 23657 f REBUTTAL PANEL NO. 21 - CROSS 1 the' establishment of access control, n
In fact, it doesn't even contain, as far as I can
) 2 Q for example,.
3 tell, access control points outside the EPZ as, q
4_ the SPMC does in Groveland.
5 (Witnesses review document.)
A (Callendrello) I don't see any access control 6
7- points listed.
8 Q. It also doesn't have any prioritization of the 9 traffic control points and access control points. That is, 10 it doesn't specify which ones are to be staffed first in 11 Lwhich circumstances, does it?
12 A (Callendrello) No , it does not indicate any 13 priority for the staffing of traffic control points.
14 Q And as-the interrogatory answer states, this plan fs i
15 is not readily available to most of those in the state
- 16. police command structure.
17 Do you agree that's what the response says at the 18- bottom of page 2 and the top of page 3 in the
- 19. interrogatories, Mass AG Exhibit 1097 20 A (Callendrello) That is what the response says.
21 Q Do you have any reason to doubt that?
(Callendrello) No. I assume these are truthful 22 A 23 statements.
24 Q Do you have any reason to doubt that this plan is 25 not available at all to any of the troopers in their Heritage Reporting Corporation
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23658 REBUTTAL PANEL NO. 21 - CROSS 1 vehicles?
2 A (Callendrello) I have no reason to doubt that.
3 Q Do you have any reason to believe that the SPMC is 4 available to most of those in the state police command 5 structure currently?
I- 6 A (Callendrello) I don't know what the state police f
7 command structure has available to them.
8 Q Do you have any knowledge of what's available to i
9 the troopers in their vehicles?
10 Do they, for example, have a traffic management 11 plan for the SPMC, which is Appendix J?
12 A (Callendrello) I don't know what they have.
13 Q You would agree, Mr. Callendrello, that at least 14 insofar as this plan goes, your Exhibit 55 (a) , the old state 15 police plan, that it is the state police and not the local 16 police that would implement the traffic control function at
~
17 these traffic control posts, correct?
18 A (Callendrello) No, I don't agree with that. I
'19 haven't compared these with the local plans recently, but 20 these, I believe, are all of the traffic control points for 21 each of the communities. I'm looking at it quickly, and 22 that appears to be the case.
23 There is a distinction made as to which points are 24 manned by local police and which points are manned by state 25 police. And if you look at the local plans, you will see Heritage Reporting Corporation (202) 628-4888 <
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l which ones are to be manned by local police. So that not !
1 7
-2' everyone of these points needs to be staffed by state 3 police. :
1
- .4 'O So'you are saying'-- well, let me take it back a l
5- step. .i j
6 On global page 274, which is labeled Attachment 5, !
7 access control instructions for Massachusetts state police, 1 i
8 it says, "The Massachusetts State' Troop A is responsible for-j s 9 manning traffic and access control--posts as described in Appendix 2. Massachusetts highway access and traffic j
10 ~ J 11 control plan..."
And it says nothing there about local police, does 12 13 it?
14 A (Callendrello) No,.it doesn't.
4 15 Q Now you are telling me that the local plans may 16 say something different; is that correct?
This is set up the way the 17 A (Callendrello) No.
And that is, the locals are to j 18 entire state plan is set up.
19' 'use the resources they have available to them in response to 20 the emergency. If they exhaust those resources, they.
contact the state through the area -- in this case, the Area 21
.22 1 organization -- to request additional resources.
23 If they need assistance in staffing traffic j j
24 control points, that assistance would come from state police !
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REBUTTAL PANEL NO. 21 - CROSS 23660 1 that can be made available.
2 And this statement at the top of page 274 simply 3 says that it's the Massachusetts State Police that are 4 responsible for manning traffic and access control points as 5 described in Appendix II, which are these traffic control 6 point diagrams. It does not mean they have the exclusive 7 responsibility. It means, in terms of the area plan, which 8 is what we are in, Exhibit 55 (a) , that is the agency that's 9 responsible for staffing traffic and access control posts.
The locals also have some responsibility. And if 10 11 you look in their local plans, you will see that they have 12 been assigned responsibilities.
13 But again, as in any case, if they exhaust their 14 resources, they would look to the state to supplement those 15 resources.
16 Q Going back to page 181.
17 A (Callendrello) Of Exhibit 55 (a) ?
18 Q Of Exhibit 55 (a) .
19' The mission of the state police, Item B: "To 20 implement the Massachusetts nighway access and traffic 21 control plan".
22 I'm just wondering if you can find anything in the 23 procedures here for the state police that tells me that they i 24 are first to look to see whether the local police have been l 25 able to staff these points before the state police do so.
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-1 A (Callendrello) Sure. .
2 If.you turn'to Exhibit 5.5, which the Radiological
-(y). .
3 ' Emergency Response Plan --
4 Q I'm talking about here in Exhibit 55 (a) .
'5 Is there anything in 55 (a) , the state police plans 6 --
7 A (Callendrello) Well, Exhibit 55 (a) is part of 8 Appendix III, and I'll take you through the process and show 9 you the philosophy of the state plan.
10 If you look at Exhibit 55, global page 61, under 11 the section entitled " State Assistance", it describes 12 overall what the state's policy is in this plan. And that 13 is, " Generally when local resources are exhausted, 14' inadequate or unavailable through normal channels to n)
- ( 7 15 mitigate an emergency, the local civil defense director will 16 request state assistance through the MCDA/OEP area office in 17 accordance with existing emergency procedures.
18 "However, this plan anticipates deficiencies in 19 some resources and arranges for them before an emergency 20 occurs. State support (manpower and/or resources) needed 21 for the implementation of local emergency operations is-22 identified in the MCDA/OEP area plans."
23 Then if you turn further in that same document 24 under Exhibit A-5, entitled "Seabrook Station", on page 184, 25 the very top of the page, it says, "The Massachusetts State Heritage Reporting Corporation
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REBUTTAL PANEL NO. 21 - CROSS 23662 1 Police, Department of Public Works, and, if necessary, 2 National Guard, will provide traffic and access control on 3 state highways. Support will also be provided to local 4 police departments if requested. Traffic and access control 5 points are identified in Appendix II of the Area 1 plan for 6 the primary and alternate evacuation routes."
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REBUTTAL PANEL NO. 21 - CROSS 23663 1 Q State police, Department of Public Works, and
- f. ; 2 National Guard will provide traffic and access control on 3 state highways; correct?
4 A (Callendrello) That's correct.
5 Q Yet, there is an instruction to the state police 6 for the old Seabrook plan to provide necessary resources for 7 access and traffic control on the specified US and state 8 highways as specified in this plan.
9 So you read that to mean that if you look through 10 the plan for the state police and you find a local road, 11 that's a local traffic control point; is that correct?
12 A (Callendrello) Without going back to the local 13 plans I can't say, yes or no.
14 Q Well, at least looking at the state plans that
) 15 seems to be what you are finding here?
16 A (Callendrello) That's correct.
17 And that would be my general impression, although 18 I can't say for certain that in 100 percent of the cases 19 that is true. I would have to check each town's plan.
20 Q Your understanding of the response to a Seabrook 21 emergency -- the traffic control response to a Seabrook 22 emergency would be that it would be both local police and 23 state police responding; is that correct?
24 A (Callendrello) That is what these plans provide 25 for; yes.
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1 REEUTTAL PANEL NO. 21 - CROSS 23664 !
1 1
1 Again, with the provision that if any local !
2 resources aren't available or insufficient that the state 3 can supplement those resources as they would any other type 4 of resource.
5 Q Assuming you are right and the local police staff 6 the local streets and the state police staff the state and 7 US highways, how many state troopers would be needed under 8 this plan?
9 A (Callendrello) I don't know that number offhand.
10 I would have to count them up.
11 Q Well, I don't want you to take the time to count 12 them up.
13 You don't know, that's your answer?
14 A (Callendrello) I don't know.
15 Q Okay.
16 A (Callendrello) I don't know offhand.
I can find that information, it's available. But 17 18 I just don't know.
19 Q Do you know what the response time of, say, the 20 first 20 state troopers would be?
21 A (Callendrello) I think it would vary.
22 I know the first troopers could be there in short 23 order because there was a barracks located in Newbury, which 24 is located within the EPZ. There are other barracks that.
25 are available and are -- I'm looking here -- would be within 4 l
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REBUTTAL PANEL NO. 21 _ CROSS 23665 1 ;cughly an hour normal travel time, and I assume they would. ;
n) f 2 travel faster than that. .l 3 Troop A in.Framingham has got 225 personnel 'f 4 associated with that troop distributed throughout eastern ;
5 Massachusetts and the north shore. . And I think in a 6 response to an interrogatory we provided a further breakdown I l
7 of that. I'm incorrect.-
8- Those individuals I would expect to be, say, 9- within an hour to an hour and 15 minutes travel time to the 10 Seabrook EPZ.
11 Q Are you --
12 A (Callendrello) The Logan International Troop,_the 13 F Troop would be within an hour. ;
14 Q Are you just giving us these times based on what 15 you know to be the normal driving times? l 16 A (Callendrello) That's correct. I l
17 Q Has New Hampshire Yankee or the ORO done any study 18 or assessment of the actual response capability, response 19 tines of the state police?
20 A (Callendrello) No, we have not.
21 Q Do you have any reason to doubt that in a fast-22 breaking accident many of the traffic control points may not 23 be staffed before an evacuation is ordered if state and 24 local police --
A (Callendrello) I don't know what you mean by 25 Heritage Reporting Corporation
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l REBUTTAL PANEL NO. 21 - CROSS 23666 1 " fast-breaking emergency." You're going to have to define 2 that better.
3 Q They were a kind of accident that quickly I'
4 developed such that a beach closing at a site area emergency 5 needed to be declared within an hour and a half of the onset i
6 of any accident conditions.
7 Would all traffic control points in Massachusetts, 8 in these plans, the old state traffic management plan be 9 staffed by them?
10 A (Callendrello) As I understand your question, 11 we're in a site area emergency for an hour and a half, and 12 then have declared or have recommended to the governor and 13 he has accepted the recommendation for beach closure.
14 And the question is: would any traffic control 15 points be manned?
16 I'm trying to think back to our testimony No. 9 17 which included the estimates of deployment times. As I 18 recall, and I would like to do this subject to checking 19 what's in that testimony, the range of times was about an 20 hour and a half to two and three quarter hours.
21 Q You're talking about the ORO traffic guides?
22 A (Callendrello) Oh, I thought that was what the 23 question was.
No , I'm talking about the state police and local f 24 Q 25 police?
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23667 REBUTTAL PANEL NO. 21 - OROSS 1 A (Callendrello) Oh, I think they would be there
,s 2
much faster. Oh, I' m sure of that.
- 3. O And I've asked you if you know of any assessments 4 or studies or have_any basis for that conclusion?
5- A (Callendrello) My conclusion is the knowledge The local 6 that these individuals are stationed in the EPZ.
7 and state police are stationed inside the EPZ.
'8 O Sufficient state police are stationed within the 9 EPZ?
10 A (Callendrello) No, that's not true.
11 Q How will these state troopers know where to go?
12 A (Callendrello) There's a variety of mechanisms 13 for providing information to the state police.
e 14 First of all, we have got a nuclear alert system g'
15 phone which ties directly with Troop A headquarters in 16 Framingham which is the controlling organization and We can 17 dispatch for the Troop A State Police personnel.
18 talk to them directly through the nuclear alert system.
19 We also have the capability to talk to the 20 Massachusetts State Police through the MAGI system, 21 Massachusetts Governmental Interface Radio System.
In addition, if the state liaisons are present in 22 23 the various Area 1 and state EOCs, they will have copies of' 24 the Appendix J to the SPMC which is the Traffic Management 25 Manual, the traffic control point diagrams and they can Heritage Reporting Corporation (202) 628-4888
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23668 REBUTTAL FANEL NO. 21 - CROSS
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1 provide that information and it can be transmitted via 2 radio, via telecopy er in some other manner to the 3 appropriate barracks or to the individual state police cars.
4 Q How can they be transferred to the individual 5 state police cars?
6 A (Callendrello) By radio.
7 Q The diagrams?
JUDGE SMITH: Doesn't the emergency planning 8
9 regulation, which provides the presumption that the state 10 and local governments will respond, also require as a 11 condition preceding to that presumption, that the utility 12 make a plan available to them.
13 Now, doesn't that presumption carry with it the 14 implicit geesumption that the plan will be accepted and used 15 by the state and local governments?
MR. FIERCE: We believe not, Your Honor.
16 We believe not. In some instances, it appears 17 that you believe so.
We have a disagreement about that.
18 19 I would like to build my record in this fashion:
20 we believe we are examining the plans, procedures that are 21 in place now as if there were to be an emergency today and We have no insights on what may 22 not at some future time.
23 happen down the road.
24 At this point in time Maspech.setts --
25 JUDGE SMITH: Have the relevant portions of the Heritage Reporting Corporation (202) 628-4888
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REBUTTAL PANEL NO. 21 - CROSS 23669 1 plans been made available? Given to the state and local
[ \ 2 governments as required by the regulations?
\/
3 THE WITNESS: (Callendrello) Yes. We have sent 4 them, Your Honor.
5 In some cases they have been rejected. In other 6 cases --
7 JUDGE SMITH: The question only was: were they 8 made available.
9 BY MR. FIERCE:
10 Q I'm asking you to assume, Mr. Callendrello, that 11 we have a situation that developed today and the state 12 troopers, as they have indicated in their interrogatory 13 answer, not only don't have it available to them in their 14 vehicles, but as you've indicated, you don't have any gs (w/ ) 15 knowledge that even the command structure has the SPMC.
16 With respect to their own plans, most of those and 17 the state police command structure don't have it, this old 18 plan.
19 The state troopers in their vehicles don't know 20 where the traffic control points are, access control points 21 are. Their old ones or yours in the SPMC.
22 They need to be instructed in how to do that; 23 correct? And where to go and what to do?
24 A (Callendrello) They would need to know where to 25 go, that's correct.
es Heritage Reporting Corporation (202) 628-4888 (v)
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REBUTTAL PANEL NO. 21 - CROSS 23670 f 1
And as I said, there are a number of mechanisms 1 2 for telling them where they need to go.
3 Q I guess where I ended was, how do the people l
4 driving those state cruisers, those state troopers get more 5 than a radio instruction on drive to a particular 6 intersection, how do they get the information which shows 7 them how to establish a traffic control point in a 8 particular manner?
As I indicated, there a:.e two 9 A (Ca11endre11o) liaisons that would report. One to the Area 1 emergency 10 11 operation center where there is also a state police 12 representative.
13 Q Let's stop.
14 Let's take it in steps.
15 How long from -- in the kind of fast-breaking 16 accident which would trigger for the ORO the immediate 17 dispatch of the liaisons, how long would it take the liaison 18 to get there? This is to the state EOC; correct?
19 A (Callendrello) No, I said the Area 1 EOC.
20 Q Area 1 EOC.
21 A (Callendrello) In Tewksbury?
22 O In Tewksbury.
23 Do you have experience from the exercise with 24 that?
I need to consult; I don't know 25 A (Callendrello)
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~l REBUTTAL PANEL'NO. 21.- CROSS 23671-1- . offhand. f
/'~=
2 (Witnesses confer.)
((_)N No, I don't have any- l 3 THE WITNESS: (Callendrello) )
' \
4 information on that. :)
5 -BY MR. FIERCE:- i 4
6- Q Would it be fair to say, it took at least an hour? I 7 A (Callendrello) I'm just going over how long ;a
}
'8 drive ~ time is. !
Are you thinking of a particular individual.who'is j 9 O 10 that liaison?.
No. I'm thinking of travel time 11 A -(Callendrello) from the ORO EOC to the Area 1 headquarters. That's about 12 IT 13 an hour drive time; maybe a little less.
14 Q My recollection on this point is fuzzy.
15 When that person who is that liaison is first 16- notified by the ORO of an emergency, is he instruct ~d first 17' to report to the ORO EOC or.is he_ dispatched from'his home a
18 or his job directly to his liaison site?
19 A (Callendrello) I'm just checking the procedure to 20 be absolutely certain.
21 (Witness reviews document.)
(Callendrello) He would report 22 THE WITNESS:
23 first to the EOC.
24 BY MR. FIERCE:
L 25 Q So he has to be notified; he has to report to the l
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REBUTTAL PANEL NO. 21 - CROSS 23672 1 EOC; and then he has to get to Tewksbury, correct?
2 A (Callendrello) That's correct.
3 O Do you know who the first shift individual is who 4 plays this role?
5 A (Callendrello) No, I don't.
6 O Does any member of the panel know?
7 A (Robinson) No.
B Q You're the liaison, Mr. Robinson, to the 9 Department of Public Health?
10 A (Robinson) Yes, I am.
11 Q There are only two other state liaisons; correct?
12 A (Robinson) That's right.
13 Q This is one of them and you don't know who it is?
A (Robinson) It could be one of several people.
14 15 I personally don't know who it is that would be 16 responding to that position.
A (Frank) I would like to just clarify that.
17 18 There are three people who fill the role of state 19 liaison to MDPH and six who fill the role of state liaison 20 to MCDA; three for each of the two facilities?
l 21 Q Right.
22 Red, white, and blue team.
23 A (Frank) Yes.
24 I thought I heard that there were two other 25 liaisons.
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4 23673 REBUTTAL PANEL NO. 21'-' CROSS-L 1, -Q:
I thought perhaps on first shift.
~2-I-thought perhaps Mr. Robinson would know:who the'
'3 others;are?
4 A (Robinson) On one shift there is one liaison to One'to the Framingham 5- the Mass Department of Public HeaLLh. '
6 headquarters, Mass Civil Defense. And one to the Area 1' ')
7 headquarters. l 8 Q Right.
9 I understand that.
10-But I thought you might know who your counterparts l l
j 11 were on the first string team of the three liaisons that ,
l 12 went out to the Massachusetts state agencies? ,
That's in Appendix H, if we can 13 A (Callendrello) 14 find that' fairly quickly. I O 15 Q. In any event, you have defined for us,fMr.
Callendrello, the trips that need to be made.
j i
16 )
17 So there would be some delay in that person l 18 arriving in Tewksbury.
But at that point when he gets there ]
correct?
19 he has a copy of the plans including Appendix J; f
20 A (Callendrello) Just to back up.
21 You had a premise in your question of knowledge there would be some delay. For the scenario that you 22 23 described of an immediate protective action, there would be f
24 that travel time built in before the individual would report i j
25 to the EOC with the traffic control point diagrams. l i
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REBUTTAL PANEL NO. 21 - CROSS 23674 j
1 There are other scenarios. i 2 Q The state liaisons are first notified at the alert 3 stager correct?
4 A (Callendrello) Correct.
5 Q Now, after getting to Tewksbury --
6 (Witness confers.)
7 THE WITNESS: (Callendrello) Mr. Robinson corrects me, they are notified at the unusual event. They 8
9 are notified and report at the alert stage.
10 MR. FIERCE: Right.
11 JUDGE SMITH: Would you remind me again, what is it that you're cross-examining on? I sort of got off in the 12 13 manning.
MR. FIERCE: I'm in the section on state police 14 15 and how the state police response would work.
l 16 JUDGE SMITH: Right.
17 And that it is inappropriate to depend upon what?
18 How does that fit into this testimony?
19 MR. FIERCE: Right now we're talking about time of 20 response.
21 JUDGE SMITH: Right.
4 22 Remind me why it's relevant to the testimony that 23 this panel is offering? Is it because you' re showing that 24 the 1986 plan is inadequate or what is it?
Somewhere siong the 25 I just lost the connection.
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1 23675 j REBUTTAL PANEL NO. 21 - CROSS ;
'1' line about a half-hour ago you slippe'd off into a line of l p
. 2 questioning that.seems'to go --
3 MR. PIERCE: I'm trying to cover both bases, Your 1
4 Honor. There are assertions'here with respect to the 1986-5 plan which give the Massachusetts State Police certain 6- capabilities.
7 I'm trying to define exactly what those 8 capabilities are in a time frame.
9' JUDGE SMITH: Why?
10 MR. FIERCE: Because we believe they are 11 inadequate in'the. kind of fast-breaking accident that we are 12 really here litigating.
13 JUDGE SMITH: What part of the testimony does it
,_, 14 relate.to?
.t hs, 15 I understand you're litigating'a fast-breaking 16 accident. What part of the testimony does it all relate to?
17 You're on coordination. Just tell me, bring it 18 irdo the direct testimony that we' re hearing about.
19 MR. FIERCE: There's a section on the state 20 police.
21 JUDGE SMITH: Where?
22 MR. FIERCE: Page 11.
23 JUDGE SMITH: Page 11.
MR. FIERCE: Describes some plans. Describes some 24 25 personnel.
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REBUTTAL FANEL NO. 21 - CROSS 23676 l 1 JUDGE SMITH: What do you intend to prove with 2 respect to this?
3 MR. FIERCE: I'm trying to show what the 4 limitations are, Your Honor, with respect to those plans and 5 that personnel.
6 I think it's a very superficial statement only to 7 make reference to the plans and personnel without talking 8 about how it would actually work in a real emergency that 9 was a fast-breaking one.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 L
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23677 REBUTTAL PANEL.NO. 21 - CROSS v.
I 1
. JUDGE SMITH:- Could you point more particularly
~
2 to the statement that you think that - -
l
.Q Your Honor, you are asking me~to take
- 3. MR. . FIERCE:
.4 their testimony word by' word, phrase by phrase and ask them 5 'aLquestion about it.
JUDGE SMITH: Mr. Fierce, do you understand what.I 6
7 have requested you to do?
8 MR.' FIERCE: I'm pointing.you to the entire 9 section and it's import.
10 JUDGE SMITH: Are you unable to point to a 11 particular statement?
12 MR. FIERCE: I'm pointing to all these-statements, I am pointing to all of them. They are 13- Your Honor.
s '14 points --
k 15 JUDGE SMITH: Beginning on page 11 to where?
16 MR. FIERCE: Through where it concludes on page 17 12.
JUDGE SMITH: And how about the time to get to 18 19 Tewksbury, how does that fit in there?
I need help. You want me to understand your cross 20 21 examination?
22 Help me then.
23 MR. FIERCE: Okay, I would like to help you 24 because this is an extremely crucial point.
JUDGE SMITH: Right. Well, help me understand 25 Heritage Reporting Corporation (202) 628-4888
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REBUTTAL PANEL NO. 21 - CROSS 1 what you are doing.
2 MR. FIERCE: All they have laid out here in terms 3 of the state response is that there are some old plans and that there are some personnel. And I am cross-examining to 4
5 bring forth that that isn't enough in a fast-breaking 6 accident.
7 JUDGE SMITH: The old plans.
8 MR. FIERCE: And what they can provide through the I am hitting both at the same 9 ORO with their liaisons.
10 time.
11 JUDGE SMITH: So mostly recently you were pointing 12 out --
13 MR. FIERCE: There is a section later on in the and 14 testimony dealing with coordination with the state, sections dealing with liaisons. And I'm trying to do it 15 16 perhaps a little more coherently than jumping back and forth 17 the way the testimony is laid out.
29 JUDGE SMITH: Right now what is it that you are 19 examining? Just what is the point that you are making right 20 now, the mini-point that you are making about how does 21 Tewksbury get into it? The time to Tewksbury, how does that 22 get into it?
23 MR. FIERCE: Tewksbury is the key facility for the 24 coordination of the state police response for Seabrook.
25 JUDGE SMITH: And you are suggesting that it is Heritage Reporting Corporation (202) 628-4888
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23679 REBUTTAL PANEL NO. 21 - CROSS j_q 1 going'to'take them a long time to get there.
MR. FIERCE: Their liaison goes to Tewksbury and
( ,/ 2L 3 -begins the process of advising the state police anyway of la' how to respond using the SPMC plan.
5 So I'm trying to point out the steps in the 6 . process that will take some time.
JUDGE SMITH: All right.
7 MR. FIERCE: And that's all we are doing.
8 MS. CHAN: Your Honor, perhaps the Staff can cut 9
10 this short.
and 11 I've been listening to some of this testimony, 12 I believe that the Mass AG has been precluded from 13 presenting any testimony on what the Commonwealth would do 14 in the case of an emergency.
\
\ 15 And to the extent that any of this information and 16 the testimony he's trying to elicit deals with the what the 17 Commonwealth would do in the case of an emergency, the 18 testimony should be excluded.
19 So perhaps that can shortcut some of the problem 20 here. I just wanted to see where the testimony was going before I objected. But as the Board may recall, earlier as 21 2L a sanction for not responding to the Staff's interrogatories 23 requesting what the Commonwealth would do in case of 24 emergency, they were precluded from presenting evidence on 25 that issue.
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23680 REBUTTAL PANEL NO. 21 - CROSS 1 MR. FIERCE: Well, I don't particularly want to .
l f
comment on that whole thorny issue. But I know I'm not 2
I am getting 3 getting into what the Commonwealth would do. !
l 4
into the issue of what the capabilities of the Commonwealth 5 are with respect to its own plans and with respect to the 6 ORO assistance being offered.
7 The capabilities are limited, and they are limited 0 in numerous ways, but time is certainly one of the ways in 9 which they are limited because of the inadequate level of 10 planning, training, drills and exercises at the state level, 11 and the time delays that are going to be built into the ORO 12 liaison process.
13 This is not to say what the state will do in any 14 given situation.
15 JUDGE SMITH: We'll break for lunch and return at 16 1:40.
17 (Whereupon, at 12:40 p.m., the hearing was recessed, to resume at 1:40 p.m., this same day, 18 19 Thursday, June 1, 1989.)
20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 l
23681 REBUTTAL PANEL NO. 21 - CROSS A E I E B H Q-Q F EEg&IQg 1
r
't (1: 43 p.m.)
\, 2-3 JUDGE SMITH: Mr. Fierce, you may proceed.
4 I'have reviewed the direct testimony that you were 5 examining on, during the lunch break, and your examination 6- is relevant, although it seems to me needlessly long and detailed. But it is relevant. You may proceed.
7 MR. FIERCE: I know this is somewhat analogous to 8
Your
.9 the old ETE situation I was in a year and a half ago, 10 Honor. 'But we believe that it's in the details that the 11 defects are revealed. And the superficial approach paints'a 12 picture that might look quite rosy. But that upon 13 microscopic examination.of parts of it, you are going to 14 find serious holes. And that's why we are doing what we are y-w.
% 15 doing 16 JUDGE SMITH: Proceed.
l
-17 Whereupon, 18 CATHERINE M. FRANK 19 ANTHONY M. CALLENDRELLO 20 JOHN G. ROBINSON 21 having been previously duly sworn, were recalled as 22 witnesses herein and were examined and testified further as 23 follows:
24 25 s Heritage Reporting Corporation (202) 628-4888
REBUTTAL FANEL NO. 21 - CROSS 23682 i
1 CROSS-EXAMINATION (Continued) 2 BY MR. FIERCE:
3 Q I suppose I could back up a ' ep and just ask the 4 Panel if it is their opinion that in fact in a fast-breaking 5 accident situation the state police in fact will find the 6 ORO and its liaisons to be of some use to it at the time.
7 I mean, if not, then I can perhaps bypass this 8 line of testimony if the position is that in a fast-9 breaking accident the ORO liaisons really are not going to 10 play any role with respect to the state police in the 11 dispatch of traffic guides.
12 A (Callendrello) Where I have trouble is in the term " fast-breaking emergency". I don't have enough 13 14 information, in terms of time, in order to make an 15 intelligent answer to that question.
16 Q Okay, and that's what I need then to explore, how 17 fast it would be for the ORO liaison to be able to respond
'18 and we can determine then perhaps whether, in accidents in 19 that time frame, there will be any assistance afforded at 20 all.
So let me pick up, I think, where we were. We 21 22 have a liaison who is heading for Tewksbury, which is an 23 Area 1 MCDA command post, correct?
24 A (Callendrello) That's correct.
25 Q Now would you agree that it is the Troop A state Heritage Reporting Corporation (202) 628-4888
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23683' REBUTTAL PANEL NO. 21 - CROSS 1 police commander who would be.in charge of Troop A that' l
' \_,r 2 would be responding for Seabrook? 1 3 A (Callendrello) Not'at Tewksbury.
- 4. O Well, that was my next-question.
k )
5-Where is that state police Troop A commander 6 ' located?
(Callendrello) I believe he's in Framingham. That.
7 A L P is the headquarters of Troop A. l Whatz connection is there between Tewksbury and the' 9 Q
~ 10 ' state police? ,'
4 Tewksbury is the Area 1 t
11 .A (Callendrello) !
- 12. ' Massachusetts Civil Defense Agency headquarters. .And there- l f
13 'is a representative of state police that does report to'that-14 location as well, and serves to access the state police' ]
e- H' 1.
1% 15. resources in support of the local needs.
So if'upon arrival the liaison is able to talk to- j 16 O
'17 that state police liaison, he could what, hand over a copy
! .18 of Appendix J to the SPMC, the traffic management' plan?
19 A (Callendrello) He could. I don't think he would 1 20 just hand it over. He will have with him -- the state a 21 liaison that reports to Tewksbury will have a copy of i 22 Appendix J, which contains the traffic control point ,
23 information, and can sit down and go over, with the state
-l 24 police representatives that is there, the specific points 1 l
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REBUTTAL PANEL NO. 21 - CROSS 23684 1 to be achieved at those points.
2 Q Do you think that they would sit down and go over
! 3 each of the traffic control points with respect to the 4 strategies to be employed at each one?
5 A (Callendrello) I think generally, yes.
6 Q How long do you think that process would take for 7 each of those traffic control points in the SPMC and access 8 control points?
9 A (Callendrello) You are making the assumption that 10 all traffic control points have to be manned by state 11 police. Is that what's built into the premise of that 12 question?
13 Q Well, I didn't have that premise. I'm just trying 14 to follow through on what you think the process will look 15 like. I'm trying to get a sense of it so that I can 16 perhaps, with you, make some assessment of how long it 17 takes.
18 A (Callendrello) Well, I just want to make sure I i
19 understand everything that's in the basis.
20 Q Yes.
21 A (Callendrello) This has been a fast-breaking 22 en, rgency.
23 Q We need to get traffic control in place as quickly 24 as possible. Let's make that assumption. Your people 25 arrive and you are telling me the next step would be to sit l Heritage Reporting Corporation (202) 628-4888 i :
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23685 REBUTTAL PANEL NO. 21.- CROSS E v down and go'over those diagrams.
1:-
- %i j
b 2 A'- (Callendrello) Again, assuming that-there was a ~
j 3 protective action ordered for some portion of the EPZ,.there 4 is a manning sequence that's contained in Appendix J. And
~
5 -the liaison would go over with the state police , ,
6 rep ssentative there and mann those points in the priority i 7 sequence that's outlined in Appendix J so the most important 8' points would be manned first.
. SF And turn to the traffic control point diagram and 10 .go over what'the strategy is. If it can be communicated by- i 11 radio, it would be communicated by radio. If there is a l l
12 state police representative who can be.telecopied that diagram,'I imagine it would be telecopied and given to the- ]
13
- 34 ' trooper in that manner.
15 They would basically review what the strategy is Raute-16 and as simply as it's at the intersection of whatever, 1~7 110 and Route 95. You need to have four troopers report 18 there. You want to keep people moving on 110, and send some 19 south on 95. Just basically a short description of the 20 strategy.
21 O Well, I still think you are eliminating a couple of steps in the process here. We've got a state police 22 23 liaison, you're telling me, who is from the Area 1, a The 24 liaison over to the MCDA headquarters in Tewksbury.
25 liaison is not going to be the command person for those i
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REBUTTAL PANEL NO. 21 - CROSS 23686 state police troopers in the field, correct? That liaison,-
1 2 the state police --
3 A (Callendrello) A state police individual, who i 4 reports to the --
5 Q Tewksbucy.
6 A (Callendrello) -- Area 1 office would be in 7 contact with Troop A.
8 Q So he then has to take the information he's now 9 gained through the process you've just described, and 10 communicate it back to his superiors?
l l
11 A (Callendrello) Not necessarily. That individual 12 can communicate directly to a state police trooper in the 13 car-to-car radio that's contained at Area 1.
14 Q And do you believe that's what would happen?
15 A (Ca21endrello) In the scenario that you have 16 described where traffic control is needed immediately, yes.
17 Q He would from Tewksbury dispatch sufficient 18 troopers by radio to all of the posts that needed 19 assistance?
20 A (Callendrello) He would first request those 21 troopers be made available by whatever means, whether they :
22 came from Troop A or from other troops throughout the ,
23 Commonwealth. And as they became available, communicated i
24 where to go and what they were to do once they arrive there. .
(
25 Q Isn't it true that the old state plan for the Heritage Reporting Corporation (202) 628-4888 i
23687 REBUTTAL PANEL NO. 21 -~ CROSS 1L state police had those state troopers mustering at a st' aging j- -
b )f 2 . area first?
3- A- (Callendrello) .Yes, I believe it:does, in 4 Topsfield.
5 Q.
So.the description of the interrelationship 6 between the ORO and the state police that you have just 7 described doesn't use the state system then, does it?
8 A (Callendrello) I would have to check what their 9 provisions.were for a fast-breaking emergency.
I believe, a 10 The.use of the staging area was for, 11 more, or a less rapidly developing accident.
12 (Witnesses review document.)
I don't see anything 13 THE WITNESS: (Callendrello) _
's 14 that indicates any different procedure for an immediate 15 general emergency.
16 BY MR. FIERCE:
17 Q There is a procedure on global page 191 for a fast-breaking notification system, isn't there?
18 A (Callendrello) I'm sorry, which document are you 19 20 in?
21 Q Of your 55 (a), the Appendix III, Section C-3.
22 A (Callendrello) Yes, there is.
23 Q And pursuant to that procedure in a fast-breaking 24 situation before the Department of Public Health and MCDA 25 are available to make protective action recommendations, the Heritage Reporting Corporation f N (202) 628-4888
REBUTTAL PANEL NO. 21 - CROSS 23688 1 state police actually issue a notification to the EPZ 2 communities to shelter, correct?
3 A (Callendrello) That's correct.
4 Q In fact, this could happen well before you 5 liaisons get there, correct?
6 A (Callendrello) In the scenario that's described 7 there, that would occur prior to liaisons arriving.
< 8 Q The former staging area for the state police, 9 according to these plans, these old plans, was the Topsfield 10 Barracks, correct?
11 A (Callendrello) It was the Topsfield Fair Grounds.
12 Q Correct.
13 Which was adjacent to the Topsfield Barracks?
l 14 A (Callendrello) Correct.
15 Q Topsfield Barracks no longer in use, correct?
16 A (Callendrello) That's correct. That troop has 17 been split into other barracks, one of which is Newbury, 18 which is again insice the EPZ.
19 Q Have any idea what the state police would do for a 20 staging area now?
21 A (Callendrello) I don't. Topsfield Fair Grounds 22 does, however, still exist.
23 Q Could use that?
24 A (Callendrello) I think they could.
25 Q Would it make sense to have a staging area Heritage Reporting Corporation (202) 628-4888 l
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23689 REBUTTAL PANEL NO. 21 - CROSS 1 adjacent to the. West Newbury barracks?
/. , _D ' It happens to be inside the EPZ,. correct?
- \ ,,/ ; 2-3 A
- (Callendrello) It is inside the EPZ.
- 4. Q Might not be a good place.to have it.
A (Callendrello) Well, it's certainly out near the 5
6 edge of the EPZ, and that's why I'm hesitating:a-little bit.
7 I would prefer to have a staging area outside the There's a Department'of
'8 EPZ, but that's a pretty good area.
9 Public Works, large Department of Public Works yard right 10 there where traffic control devices can be maintained.
i 11 Salter Bus. Company is right within probably a quarter mile 12 of there. So it's a very good location.
13- Q Doesn't your hesitation indicate that it's not es 14 immediately obvious what the state police would do for a
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\. / 15 staging area at this time?
No. Your question was would that 16 A (Ca11endre11o)
And my hesitancy was 17 be a good location for a staging area.
And generally I 18 because that barracks is within the EPZ.
19 would prefer to have a staging area outside of the EPZ so 20 that if there was a full EPZ evacuation, that staging area 21 would not have to be evacuated.
22 But I think for other reasons that's a pretty good i
23 location.
24 Q But the state police might have the same hesitancy 25 you did.
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REBUTTAL PANEL NO. 21 - CROSS 23690 1 A (Callendrello) It's conceivable they might.
2 Q Assuming they would set up a staging area 3 somewhere according to their plan so they could distribute 4 traffic control diagrams and make specific assignments, 5 perhaps even explain the strategies for particular 6 intersections.
7 Do you have any sense or have you done any studies 8 or assessments on how long that staging area process would 9 take?
I haven't studied how long it 10 A (Callendrello) 11 would take state police. We do have records that indicate And 12 how long it takes the ORO individuals to be dispatched.
13 that was in our Applicants' Rebuttal Testimony No. 9.
And how long was that dispatch period? Do 14 0 Yes.
15 you recall?
unfortunately, don't have a 16 A (Callendrello) I, 17 copy in front of me.
18 Q All right if you don't --
19 A (Callendrello) I just don't know.
20 Q It's whatever it says in that testimony.
21 A (Callendrello) Right.
22 Q But it was some period of time, 23 A (Callendrello) Yes, that's correct.
24 0 Your people have been drilled, trained and 25 exercised in that process, correct?
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23691 REBUTTAL PANEL NO. 21 - CROSS t-1 A (Callendrello) .Yes, they have.
[f
, (_, .-
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2- O They are also familiar with those diagrams?.
They've seen them before. They
-3 A (Callendrello)
They have used them in drills. They 4 have used them before.
5 have seen them, 6 O They know that an arrow with a line means !
7 . discourage traffic, correct?
8 A. (Callendrello) They know it,.and the diagram says 9 that.
10 Q And they have also had training on how the correct?
11 diagrams are to be interpreted and used, l 12 A (Callendrello) That's correct.
Now, the state police do not have their own l
13- Q i 14 barricades and cones as the ORO workers dp at 'he staging
\% 15 area, because the Department of Public Works supplies the barricades and cones in Massachusetts, correct? l 16 A (Callendrello) That is.my recollection that that 17 1 18 is the case.
19 I'm trying to think whether they carry some 20 limited number of cones, and I just honestly don't recall..
21 O Lad if the old Massachusetts plans had been 22 carried-through and the Department of Public Works were 23 involved in planning and were familiar with those plans, 24 they would know how many cones and barricades to deliver to 25 each of those intersections, wouldn't they?
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i 23692 REBUTTAL PANEL NO. 21 - CROSS A (Callendrello) Yes, they would. They would know 1
2 without having to be told independently.
3 0 Do you have any -- have you done any assessments 4 to determine how long it would take the Department of Public
~5 Works to distribute all the cones and barricades that would 6 kw needed at the access and traffic control points in the 7 EPZ?
8 A (Callendrello) Well, there is one faulty premise 9 in that. And that is, we no longer use barricades in the SPMC for directing traffic. We use solely traffic cones.
10 I understand that. But let's assume they were 11 Q 12 going to follow their own plan.
13 A (Callendrello) I have no information as to how 14 long it would take.
15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
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- 1. Q Is it your opinion that the state police would I
( ,/t 2 head out to those traffic control posts without waiting for 3 the cones and the barricades?
4 A (Callendrello) It's my opinion they would; yes.
5 They perform traffic control on normal basis, if 6 there's an accident scene, by simply using'the hand signals 7 and their vehicle to assist in directing traffic.
8 Q Now, taking that whole process from start.to 9 finish, in your view, Mr. Callendrello, adding up those l
10 various times, even though I know we have left somewhat 11 vague, does that still mean, in your opinion, that the state l 12 police can get there quicker than the ORO traffic guides?
I think some can. l 13 A (Callendrello) 1 l
14 Q Some can? I Os 15 A (Callendrello) Yes.
16 For the scenario you described.
17 Q-Is the ORO doing anything specifically to l
\
18 communicate with the state police before the liaisons arrive 19 to suggest that they hold the state police and not dispense 20 them under their old plans, in the fashion we have 21 described, before the liaisons get there and show them the 22 new plans that you have?
(Callendrello) I don't know of any specific l
23 A l 24 instructions that say what you just described.
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REBUTTAL PANEL NO. 21 - CROSS 23694 1 establishes contact with the person who is running the state 2 response at their headquarters. But I know of no specific l 3 instruction in the regard you just described.
4 Q Under the old state police traffic management 5 plans, traffic is directed to reception centers in Peabody 6 and Andover; correct?
{
f 7 A (Callendrello) Correct.
8 Q The ORO reception centers are in different towns; 9 correct?
10 A (Callendrello) Well, they're in different towns, 11 but in the case of North Andover it's on the same road but 12 south about a mile.
13 Q Will the ORO do anything at all to persuade the 14 Mass State Police to use its plan, the ORO plan in Appendix 15 J instead of its old plans?
16 A (Callendrello) I have trouble with the word 17 " persuade." I think I have testified and the prefiled 18 testimony describes the fact that the liaisons arrive at 19 these locations. They are there to provide information; to 20 provide access to whatever resources the ORO has available.
21 They are not going to twist the arms of state police to man 22 certain traffic control points over others.
23 They are going to make suggestions, and one would 24 presume -- at least I presume that the governor will take 25 the suggestions that best protect the health and safety of Heritage Reporting Corporation (202) 628-4888
REBUTTAL. PANEL NO. 21 - CROSS 23695 i
1- the' citizens of the Commonwealth. -1
- s 2
If.it is the ORO traffic control points, as we 3 feel.it~is, that he will follow those suggestions and the 4 state. police will follow those suggestions. ,
5 Q Obviously, you feel that your plan is a better
.6 plan'otherwise you would have just adopted the old state 7 plan and you haven't done that.
8 But how is the governor to know --
9 A (Callendrello) We have come pretty close.
10 Q How is the governor to know which of these two 11 plans would be a better one to follow?
12 A (Callendrello) You're implying ~that there are two 13 separate plans. As I've testified, both in regards to i I
Applicants Rebuttal No. 9 and also here, with the exception f f-- 14 ;
( .
15 of four points, one new one and three modified points,'the 16 strategies are the same.
17 Q But with respect to the use of the ORO versus the 18 use of the state police, we have two completely different 19 organizations, two completely different systems for 20 dispatch, and one using barricades and the other one not, 21 and substantial differences; correct?
A (Callendrello) I wouldn't categorize them as 22 23 substantial differences.
24 If the state police arrives and this traffic f
25 control point is established using cones and an ORO person, ;
o ?
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1 provisions exist for the function to be turned over to state 2 police, if they are assuming that function. If a state 3 police representative is there when the ORO traffic guide 4 arrives, the ORO guide can assist that trooper in setting up 5 the traffic control point in accordance with the strategies 6 contained in the SPMC.
7 Q Given a choice between his own state police, which 8 he is presumably familiar with, and the ORO organization, 9 which he has a little contact and a little knowledge, 10 knowing that -- let's assume he were to know, as we have 11 discussed here today, that the state police would probably 12 be able to respond more quickly, at least to some extent 13 some troopers, can you foresee any situation in which the 14 governor would stay his hand in using the state police and 15 rely instead on the use of the ORO traffic guide?
16 MR. LEWALD: Objection. That question is so broad 17 that it would be meaningless to put an answer to it.
18 JUDGE SMITH: Sustained.
19 BY MR. FIERCE:
20 Q Why would the governor use the ORO traffic guides 21 instead of using the state police?
22 A (Callendrello) If it meant that using ORO traffic 23 guides better protected the citizens of the Commonwealth, 24 I'm convinced that the governor would utilize those 25 resources.
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'l It's consistent with the policy of Mr. Agnes.
,_q k ,)\ l 2 It's consistent with the admission of the Commonwealth that to protect 3 they would use any resources, public and private,
.4 the health and safety.
5 Q Well, I'm not disputing that statement, 6
But the state police -- we're assuming the state j.
Why 7 police are going to respond and do their-best efforts.
8 wouldn't the governor always pick the state police to be 9 that response organization for traffic and access control?
10 A (Callendrello) Are you sa;ing, assuming even 11 'using state police endangered public health and safety?
12 I_ don't think the governor --
0 Well, how would using state police ever " endanger" 13 g ~g 14 public. health and safety?
\ 15' A (Callendrello) Well, as I explained in my answer, 16 the governor would chose whatever course of action to better 17 protect the public health and safety. If that meant that 18 state police could arrive there first and could implement 19 the strategies co.sistent with the plan, he would utilize 20 that resource.
21 If ORO is able to respond more quickly or more 22 completely, I would expect the governor to utilize the ORO 23 resources. And supplement those resources as the 24 Commonwealth was able to.
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REBUTTAL PANEL NO. 21 - CROSS 23698 1 done here, he will come to the conclusion that, at least, 2 some state troopers are going to be able to get there 3 quicker?
4 A (Callendrello) For the scenario you outlined.
5 0 Yes.
l 6 A (Callendrello) Implicit in all this discussion, 7 in my mind is,'we've outlined a fast-breaking emergency and 8 ORO people are not able to arrive.
9 Q ORO people are arriving in the time frame that you 10 have demonstrated in 'che exercise, yes?
11 A (Ca11endre11o) Okay.
12 O I just want to clarify one point.
13 I did notice in the testimony somewhere and I 14 think you just confirmed it here as well, that liaisons will 15 be offering advice; correct?
16 A (Callendrello) That is correct.
17 Q And if the advice is -- will they be advising the 18 use of the ORO traffic management plan?
19 A (Callendrello) Yes.
20 If an evacuation is ordered and traffic control is 21 needed.
22 O Because of the difference in the traffic control 23 strategy employed at the critical intersection at I-95 and 24 Route 110, the difference between the old state plan and the 25 ORO plan, isn't it a fact that the ETEs under the two plans Heritage Reporting Corporation ,
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REBUTTAL PANEL NO. 21 - CROSS 23699 1 are different?
n 2 A (Callendrello) No, that's not my recollection.
(v-3 Mr. Lieberman is the expert on ETEs.
4 But it's not my recollection that that strategy, 5 the change in strategy at that point is the reason for the 6 differences in ETEs between what is contained in the KLD 7 evacuation time estimates that were current at the time of 8 the area plan and the present ones.
9 There have been a large number of parameters that 10 have evolved and have changed in the preparation of the 11 ETEs.
12 O But that if -- this gets back to the grassy median 13 used by the old state police plan, if they were to employ j 14 that strategy of having half the vehicles turn left over the O
fis 15 grassy median while the other half turned right and went up f i f the on ramp, the ETEs would be substantially longer than
! 16 l 17 using the strategy that Mr. Lieberman is currently 18 employing; correct?
19 A (Callendreilo) No, that's not my recollection of 20 the testimony.
21 My recollection of the testimony -- I would have .
22 to check it because --
23 Q All right.
24 A (Callendrello) -- it's in number 16 --
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25 0 We can explore this --
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REBUTTAL PANEL NO. 21 - CROSS 23700 i
1 A (Callendrello) -- there is no change in ETE with
( 2 that change in strategy.
3 Q We can explore this with the panels coming up on 4 ETEs, so I won't press you with it any further.
5 I wanted to move to the Department of Public 6 Works.
7 Again, you have excerpted it from the 8 interrogatories in quoting their likely response. They have l
9 indicated that they would refer to the offsite emergency 10 preparedness training for Pilgrim Nuclear Power Station, 11 overview of the implementing procedures. Something they 12 call PIP. And that that PIP is site-specific to Pilgrim.
13 This means that the Department of Public Works 14 will look to the kind of strategies that employs for 15 Pilgrim; doesn't it, Mr. Callendrello? But it doesn't 16 necessari3y know where it has to go for Seabrook with cones 17 and barricades or to perform the other functions it performs 18 or how many cones and barricades it needs to have delivered 19 to each particular site; isn't that correct?
20 MR. LEWALD: Does thio question ask Mr.
21 Callendrello what your response to the interrogatory is?
22 MR. FIERCE: What his response to the 23 interrogatory is?
24 MR. LEWALD: What the Massachusetts Attorney 25 General's response to interrogatory 2 is.
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i- REBUTTAL PANEL NO. 21 - CROSS 23701 1' MR. FIERCE: I'm asking him to give us how he p { -~
2~ under' stands that interrogatory and what that' interrogatory
,e 3
3 -then means:for a Seabrook response.
4 MR. LEWALD: The question is: how does he.
5 understand it?
6 MR. FIERCE: Yes.
THE WITNESS: (Callendrello) As the testimony 7
8 indicates, we understand the functions that DPW has in the 9 PIP to be those seven that are numbered on page 13; three of 10 which have to do with the delivery of traffic control 11 equipment.
12 There are others, though, which, for example, 13 notify and update maintenance engineers; provide a liaison 14 function; relay state request for assistance; removal of 15 road impediments, clearing evacuation routes of snow and
- 16. ice.
17 And then there's supervised delivery of traffic 18 control equipment; inventory traffic control equipment; and 19 deliver equipment. And then there is a function associated 20 with dosimetry.
21 Those are the functions I would expect DPW to 22 perform in accordance with that interrogatory response.
23 BY MR. FIERCE:
24 Q Let's take that first one, the MCDA, Area DPW 25 representative, notify and update maintenance engineer;
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REBUTTAL PANEL NO. 21 - CROSS 23702 1 provide a liaison function; and relay state request for 2 assistance.
3 Doesn't that indicate that, rather than having a 4 list of cones and barricades, they are going to wait until 5 somebody gives them some numbers and instructions?
Is that how I interpret that?
6 A (Callendrello) 7 Q Yes.
8 A (Callendrello) Are you asking me if that's how I 9 interpret that function?
10 I guess that's how I would interpret that 11 function. But I see number five is that the foreman of the 12 traffic maintenance section would be inventorying and 13 dispatching equipment.
14 Granted, the dispatch would involve knowing where 15 to dispatch. But I think inventorying could be done prior 16 to a need.
17 18 19 20 21 22 23 ,
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REBUTTAL PANEL NO. 21 - CROSS 23703 .g 1
1 Q Number 2, the roadside. engineer, remove road 1
z ~'s .
l 2 impediments.
3 Is it fair to assume, Mr. Callendrello, that the
.j 4 Department of Public Works roadside engineer has-no action-5 Lplan for the number of tow trucks'he might need, what kind,-
. where they.are to be stationed and no plans have been
.6 i 7 drilled or exercised in that regard?_
8 A (Callendrello) There were a number of questions 9 in that single question.
10 Could you please just break it one at a time?
- 11. O All right.
12 A (Callendrello) I'm having trouble keeping track
'13 of them all.
14 Q For Seabrook, and looking to the Pilgrim Nuclear 15 ' Power Station overview of implementing procedures, the 16 Department of Public Works isn't going to have -- let's 17 start.at'the beginning -- knowledge of how many tow trucks 18 it would need for a Seabrook EPZ.
19 A (Callendrello) I don't know what knowledge they 20 would have. There was a description of the number of tow 21 trucks needed in the evacuation time estimates.
4 22 Also, the National Guard plan from 1984 indicated 23 the number of tow trucks that they intended to deploy to the 24 Seabrook EPZ.
25 I don't know what the current knowledge is of the Heritage Reporting Corporation (202) 628-4888 I
REBUTTAL PANEL NO. 21 - CROSS 23704 1 Area 5 engineer as regards specific tow truck needs for DPW.
2 Q The function third is snow and ice control 3 engineer clear evacuation routes of any snow and ice.
4 Do you know whether this means that the state will 5 be plowing during an evacuation?
6 A (Callendrello) That's my understanding. If it 7 was needed, they would be plowed, or it would be plowing.
8 Q The snow and ice control engineer, in looking to 9 those Pilgrim plans, would not have knowledge about which of 10 the state highways in the EPZ were used for evacuation 11 routes, would he?
12 A (Callendrello) That wouldn't be contained'in the 33 Pilgrim plan, but I don't think it's any great mystery in 14 the Seabrook EPZ that the important routes are Route 95, 15 Route 495 and the other state highways.
16 I think there has been a lot of testimony from 17 Intervenor witnesses, at least on what they felt were the l 18 important routes and which routes should be considered 19 first.
20 0 So you think the engineer would intuitively know 21 where to focus his first efforts at snow plowing up there?
22 A (Callendrello) And I also think that state 23 police, as a matter of the normal course of business, have 24 the ability to communicate with Public Works and tell them 25 if there is an area or a road that needs to be plowed that Heritage Reporting Corporation (207.) 628-4888 o --- I )
23705 REBUTTAL PANEL NO. 21 - CROSS 1 is'not yet currently plowed.
,, y Now you mentioned that Items four, five and six,
'k ) ,
2; Q i 3 or positions four, five and six would all have to do with l- 4- delivery of equipment.
5 Given the state of planning that you are aware'of 6 in Massachusetts, can_you tell me how that delivery system i 7 would in fact work for Seabrook? !
8 A (Callendrello) If you would give me just a 9 moment, I'll look at the 1986 plan. l q
10 (Witnesses review document.)
THE WITNESS: (Callendrello) What I find in the 11 12 DPW procedures contained in Exhibit 55(a) at global page 13 351, it talks'about how requests for DFW equipment and
.-s 14 personnel would be handled. It's under a section entitled i I
k, 15 " Command and Control".
16 BY HR. FIERCE:
17 Q Which page was that again?
18 A (Callendrello) Global page 351.
19 Q Well, if we're talking about cones and barricades, 20 somebody over at the state police is likely to give somebody 21 at the state Department of Public Works a phone call, 22 correct?
A (Callendrello) That's exactly what the plan says.
23
- 24 That's correct.
25 Q State police will --
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t REBUTTAL PANEL NO. 21 - CROSS 23706 1 A (Callendrello) Or it could be -- it could be via 2 radio as well. 1 3 Q Via radio? Could be.
4 Somebody at the state po1 Lee will have had to have i l
5 done what we didn't want to take the time here today, and l 6 which is to count up, but there don't seem to be any totals in that old state police plan. But somebody would have to 7
8 count up the number of traffic barricades and traffic cones 9 that would be needed and communicate that information, 10 correct?
11 A (Callendrello) Or they could talk to the liaison 12 individual, because there are totals in the SPMC, Appendix 13 J. Or simply just say load up a truck with cones and 14 barricades and send them into Salisbury and Amesbury because 15 we need them there first.
16 Q Well, how would they know where to deliver them, 17 and once there, how many to place at each intersection?
18 How would they know that?
19 A (Ca11endre11o) Again, we're assuming that we're 20 in a fast-breaking emergency such that the liaisons have not 21 been deployed yet; is that correct?
22 O Correct.
23 A (Callendrello) Either by communication with the 24 state police, or by communication through state police or.
25 through civil defense headquarters to the ORO EOC.
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L REBUTTAL PANEL NO. 21 L
'1' Q And.they would have to orally, by radio or
( ,) 2 telephone, go traffic control point by' traffic control point 3 'and give that information?
4 A (Callendrello) They would have to tell them 5 traffic control point by traffic control point where to go.
6 If they did'as I suggested, and loaded up the truck with 7 traffic cones or barricades, we could go' from point tx) point.
8 and drop off as many as are needed.
9 Q They-would have to at least know where to go.
Di ' 10 A (Callendrello) Yes, they would have to know where 11 to cp) .
, 12 Q And when they got there, you're assuming that the 13 state trooper would be there to tell them how many he
-s 14 needed?
- 15 A (Callendrello) I don't know if it'would be --
16 JUDGE SMITH: I --
I' m sorry, Your 17 THE WITNESS: (Callendrello) 18 Honor.
19 JUDGE SMITH: Go ahead. Answer.
20 THE WITNESS: (Callendrello) If'there was a state 21 trooper there, and the state trooper had the diagram or had T2 that information communicated to the state trooper that that 23 individual would be able to tell the DPW.
24 If it was an ORO individual, they would be able to 25 tell the DPW, in fact, they wouldn't need to have any DPW Heritage Reporting Corporation (202) 628-4888 a ___- _ _ - _ - . ___ b
23708 REBUTTAL PANEL NO. 21 - CROSS 1 equipment. Or if it was communicated through the EOC, this 2 is the state EOC, either Area 1 or Framingham, that 3 information could be passed from the ORO EOC to the state to 4 that individual through their communications network.
5 JUDGE SMITH: I just want to make an observation 6 at this point for the record, because I don't believe that 7 the casual reader of this transcript would fully realize 8 that implicit in your cross-examination is criticism of the 9 Panel for uncertainties in the response of the Department of 10 Public Works, which uncertainties flow from the inadequacy 11 of the Commonwealth's own response to discovery.
12 It really is mind-boggling to think of the logical 13 hurdles that we have to overcome to go around in this 14 circle.
Well, no, I think I only would want 15 MR. FIERCE:
16 to clarify what you said by saying I think what you have got 17 in those answers to discovery is the thinking of those 18 agencies as far as it went.
19 What we' re trying to do is to flesh out the gray 20 areas to show what more would need to be done in order to 21 invoke these --
JUDGE SMITH: What more would need to be known, 22 23 that's the thrust of your --
MR. FIERCE: What would need to be known in light 24 25 of the --
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REBUTTAL ~ PANEL.NO. 21 CROSS 23709 JUDGE' SMITH: Yes., And the things that are not 11 j-2' .known are directly attributable to the Commonwealth's m(
3J response to discovery as to which they were' told to respond, 4- or suffer the inference that the response would be adequate.
5' MR. FIERCE: 'Your Honor, I want to be clear on 6 this.-
7 JUDGE SMITH: Yes. Right.
8 MR. FIERCE: You've got the full response, the 9 full response in discovery.
10 JUDGE SMITH: I'm looking at right here in my hand 11 right now, yes.
MR. FIERCE: It's clear that there is. planning.
12 13^ that has not been done. At some point for each of these 14 agencies you reach a point where they say, this is all we've 15 got, and we haven't gone beyond that.
16 JUDGE SMITH: But you'have asked a series of 17 questions as to what he knows about the Department of Public 18 Works, as to what-the Department of Public Works knows and 19 could have put in their discovery response.
MR. FIERCE: No, they don' t know. They don't 20 21 -know.
22 JUDGE smith: They can't be so uninformed and still get out there and clean a street. I haven't stopped 23 24 it. It is just_an observation as a place marker because I 25 don't believe anybody reading this transcript could fully Heritage Reporting Corporation O (202) 628-4888 r
1 REBUTTAL PANEL NO. 21 - CROSS 23710 1 appreciate the logical short circuit that has brought us to 2 this point. l MR. FIERCE: No short circuit here at all, Your 3
4 Honor.
5 JUDGE SMITH: All right.
MR. FIERCE: For the record, I'm going to have to 6
7 disagree.
8 JUDGE SMITH: All right, that's fine.
9 Go ahead.
10 MR. FIERCE: We're trying to flesh out what the 11 Applicants are contending is a series of some old plans, 12 some new plans, and response capabilities that will be 13 adequate. And in fact for Seabrook, there are some gaping 14 holes here. That's all we are doing 15 BY MR. FIERCE:
16 O Let me just to pick it up and move it forward, 17 isn' t it true, Panel, and parhaps, Mr. Robinson, you may 18 know more about this, that with respect to the planning 19 around the other nuclear plant sites in Massachusetts, there 20 are in fact stockpiles of traffic cones and traffic 21 barricades that the Department of Public Works has?
22 A (Robinson) They would be available at the area of You 23 Department of Public Works headquarters or garage.
24 know, it's a normal piece of equipment for Department of l
25 Public Works.
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REBUTTAL PANEL NO. ;21' - CROSS 23711 It certainly is.a normal piece of' equipment.
But 1 O
. m 2 the numbers'are enhanced because of the locations near 3 nuclear plants, correct?
4 A (Robinson) I don't know if that's the case or 5' not.
6 Q There's a sentence just below- the numbered 7 positions that reads, " Thirty-one supervisory DPW personnel 8 are available to respond in a radiological emergency"-
9 As to those 31 supervisory personnel, isn't it 10 true that three are in Lennox, Mass, three in North Hampton 11 and three in Worcester and all of those are in either the 12 central or the western part of the state?
13 A (Callendrello) Just give me a moment to find the 14 interrogatory response, ym That's from the Mass AG's second
( 15 Q Okay.
16 supplemental answers to NRC Staff's first set.
17 A (Callendrello) There are three in District 1, 18 which is Lennox, three in North Hampton, and three in 19 Worcester. That is correct.
20 Q All of those at locations, for those who don't 21 know, are in fact in the central or western part of 22 Massachusetts, correct?
23 Worcester is in central Mass.
24 A (Ca11endre11o) Worcester is. I don't know where 25 Lennox is.
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REBUTTAL PANEL NO. 21 - CROSS 23712 1
1 Q Lennox is in far western Mass.
2 What do you know about the training that the 3 approximately 120 individuals have received?
Just what's in the interrogatory 4 A (Callendrello) 5 response and the documents that have been produced.
6 Q Let me move on to the National Guard -- I'm sorry, 7 did you have something further?-
8 A (Callendrello) No. I was just looking to see if 9 you had produced anything that gave us the numbers.
10 0 Okay. Again, with respect to the National Guard 11 and your testimony on page 14, it's a partial excerpt from 12 the interrogatory answer of December 19th, NRC Staff's third 13 set. It's on page 3.
14 Let me just ask the Panel if they have any idea of 15 how long it actually takes to mobilize the National Guard?
16 A (Callendrello) In general, it's a six to 12-hour l
17 process.
18 O THe National Guard is comprised of civilians who 19 need to be called up to duty from their civilian walks of i 20 life, correct?
21 A (Callendrello) That's correct.
22 Q Just a minor point again here in the second 23 sentence that's quoted.
24 A (Callendrello) Excuse me. Mr. Fierce, I just
) 25 found a reference that is from our Exhibit 55 (a) on global l
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23713 REBUTTAL PANEL NO. 21 - CROSF 1- page 370,.that indicates that, " Sufficient resources to 2 implement this MOU as outlined herein will be mobilized for j;
i-l 3' deployment within six hours of the governor declaring an 4 emergency. "
5 That was closer to the lower bound of my estimate.
7 8
9 10 11 12 j
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13 14 q
15 j 16 l 17 18 1
19 20 21 22 23 24
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J 25 Heritage Reporting Corporation (202) 628-4888 i
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REBUTTAL PANEL NO. 21 - CROSS 23714 i 1 Q Again, this is just a minor point. /
2 There is just a slight misquote here again. In 3 the second full sentence on page 14 there's a quote that 4 begins: "After being notified," I think the panel would j 5 agree if they looked at the interrogatory the word is not 6 " notified" but " alerted."
7 A (Callendrello) That is correct.
The next paragraph begins with a sentence: "MCDA 8 Q ,
9 in looking to the CERP for guidance would find the following 10 responsibilities specifically assigned to the National 11 Guard."
12 This is just a list of functions, is it not, 13 Panel? It's not meant to be an indication that the National 14 Guard actually has plans specific for Seabrook which it has 15 trained people on and has drilled and exercised with?
16 A (Callendrello) No, it is a list of those 17 functional areas that the National Guard has as part of 18 their r, responsibilities for any type of an emergency. That's 19 the purpose, again, of the Comprehensive Emergency Response 20 Plen.
21 Those plans are as applicable to Seabrook as they 22 would be to any part of the state.
23 Q With respect to that first item listed " Support 24 civil authorities in maintaining law and order, providing 25 security, and establishing traffic control in disaster Heritage Reporting Corporation (202) 628-4888
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f-REBUTTAL PANEL NO. 21 - CROSS 23715 f,;
-1 areas."
A The National Guard does not have specific plans (v) 2 for Seabrook; correct? They would take instruction, 3
4 guidance, et cetera, to do what was requested, but they have 5 no specific plans for implementing traffic control in the 6 Seabrook area?
7 A (Callendrello) They do have a plan.
8 Again, it's Exhibit 55A, although not referenced in the interrogatory response. Exhibit 55A at global page 9
10 378 indicates -- it's an attachment to the National Guard 11 procedure - -that indicates-law enforcement augmentations 12 and talks about the types of National Guard units that would 13 augment local police. And those units consist of i
14 approximately 300 trained military police personnel in the l
l 15 eastern and southeastern sectors of the state.
16 Q There are Guard units available, we know that.
17 A' (Callendrello) And then -- I haven't finished.
Further on it talks about deploying those military
~
18 19 police units to the Topsfield State Police Barracks.
20 0 That section goes on to state: "That mobilization 21 times vary up to 12-hours depending on locations and 22 availability of vehicles to support equipment," does it not?
23 A (Callendrello) Yes, it does.
24 And I guess that's where I remember the 12-hours 25 from.
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REBUTTAL PANEL NO. 21 - CROSS 23716 l 1 JUDGE SMITH: What does the 12-hours or 6-hours 2 refer to?
3 MR. FIERCE: Mobilization time for the National 4 Guard.
JUDGE SMITH: The entire 16,000 members of the 5
6 National Guard or parts of it?
7 MR. FIERCE: No. It says: " Mobilization times 8 vary." I would assume by units.
9 BY MR. FIERCE:
10 Q But just to be clear.
11 We' re talking about a backup group, an assistance 12 group that would be useful after they can be mobilized in 13 various ways which include traffic control; correct?
14 They don't have specific plans to step in and know 15 where to go, at what intersections, and what to do at this 16 point?
17 A (Callendrello) Again, there's a couple of 18 questions there.
19 I see the role of the National Guard as described 20 in the CERP exactly as we have quoted.
21 Q It's a backup group?
22 A (Callendrello) It is a support organization that 23 can, once mobilized, provide support in many areas with a 24 large number of . individuals and a wide variety of expertise.
25 Q When the National Guard is given instructions it Heritage Reporting Corporation (202) 628-4888 1
23717 REBUTTAL PANEL NO. 21 - CROSS 1 will form its own operation plans for implementing those 2' instructions; correct?
(Callendrello) You have referred in your t
L ~3 A 4 interrogatory response to two plans. One is a domestic 5 emergency standing operation' procedures; and the other'is OP 6 Plan II. I'm not familiar with those plans.
These are standing operating procedures; correct?
7 Q I don't know; I've never seen 8 A (Callendrello) 9 them.
10 Q The National Guard is going to be receiving 11 direction from Mass Civil Defense Agency and/or the 12 Department of Public. Safety as they have stated here; 13 correct?
I don't think they receive
- r' 14 A (Callendrello)
( direction from them. I think that they are under the N. 15 16 command of the governor.
17 Just give me a moment and I'll look in the plan to 18 see who they directly report to.
19 (Witness reviews document.)
There is an Adjutant 20 THE WITNESS: (Callendrello) 21 General who directs the activities on the National Guard.
22 And again, I'm looking at Exhibit SSA, page 371 23 and 372 that talks about the responsibilities of the 24 Adjutant General. And he would work in concert with the 25 Civil Defense Agency and the director of the Civil Defense Heritage. Reporting Corporation
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REBUTTAL PANEL NO. 21 - CROSS 23718 1 Agency and respond to requests from the Governor and the 2 Secretary of Public Safety to provide personnel and 3 resources to protect public health and safety.
4 BY MR. FIERCE:
5 0 All I'm trying to establish, Mr. Callendrello, is 6 that having gotten that assignment, that direction from 7 where -- what happens next for the National Guard is that 8 they essentially devise an ad hoc plan for accomplishing 9 that task using their units they have mobilized and the 10 equipment and resources they have available; correct?
11 A (Callendrello) If they use the plan that's 12 contained in Exhibit 55A it is more -- I would judge it as 13 more than an ad hoc plan. They would muster their forces.
14 They would deploy certain specialized individuals or 15 specialized resources tc various staging areas to be part of 16 the support organization for the state's response.
17 They would send the military police to Topsfield.
18 They would send emergency medical services people to the 19 Topsfield Fairgrounds. They would send wreckers to the 20 Topsfield Fairgrounds. And from there they would send fuel 21 tankers to the Topsfield Fairgrounds; and from there they 22 would be deployed to other locations outside or within the 23 EPZ.
24 Q Well, you're assuming they're following that plan?
)
25 They would look to that plan when asked?
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REBUTTAL PANEL NO. 21 - CROSS 23719
- 1. They didn't mention that, did they?
~
- [ 2 A (Callendrello) In the interrogatory response?
l 3 Q Yes.
4 A (Callendrello) No. There is something called.
5 DESOP and OP Plan II. As I said, I don't know.what they 6 are, although DESOP, D-E-S-O-P, is referenced in this 7 Exhibit 55A.
8 Q It may well be they don't even have the old 1986 9 plans any longer; correct?
10 A (Callendrello) I don't know what they have.
11 Q But even if they did, what you've described are 12 merely what I would call the " standard operating 13 procedures."
14 If they were given an assignment to move units in i 15 to, say, Amesbury'to secure the town and implement parameter k
16 access control, they would devise the plans for that 17 operation at the time; correct?
18 A (Callendrello) Yes.
19 And I think that would be perfectly appropriate, 20 because you're describing a situation where the communities 21 .have been. evacuated already; and therefore, public health 22 and safety is not at jeopardy.
23 Q_
And the same thing would happen, too, if during an 24 evacuation the National Guard were asked to move into 25 Amesbury and take over traffic control. They would devise Heritage Reporting Corporation (202) 628-4888
REBUTTAL PANEL NO. 21 - CROSS 23720 1 their operational plan for which units would be utilized and 2 who would go where at the time; correct?
3 A (Callendrello) No.
i O They know now which of their units would be l 5 assigned to that task?
6 A (Callendrello) No, they do not.
7 But you' re mixing two scenarios, and that's where 8 I'm getting confused. You are asking me to consider a fast-9 breaking emergency and a National Guard mobilization that we 10 know takes six to 12-hours.
11 Q Strike the fast-breaking emergency here.
12 We' re clearly not talking fast-breaking when we' re 13 talking National Guard. If I gave you that impression I'm 14 sorry.
15 JUDGE SMITH: See, when you talk about fast-16 breaking you don't complete the thought with the duration of 17 the emergency either.
18 MR. FIERCE: Well, let's just be clear here.
19 I was using that back when we were talking about 20 the state police and the Department of Public Works. But we 21 don't have a fast-breaking accident situation where we're 22 using National Guard, at least within the first 6-hours.
23 BY MR. FIERCE:
24 Q But we could have a situation, couldn't we, Mr.
25 Callendrello, where the state police perhaps have been Heritage Reporting Corporation ,
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REBUTTAL PANEL NO. 21 - CROSS 23721 1 mobilized and have gone out to traffic control points and are waiting for an evacuation order to be issued and it (v) 2 doesn't come for 10 or 12 or perhaps 15-hours, and they need 3
4 to be relieved and the National Guard is called in at a time 5 when an evacuation is occurring.
6 But at the time that Guard unit mobilizes, that is 7 the time when they will be forming their plans for who goes 8 where, which units go where, and which individuals in those 9 units will be given what assign ments, say, in the Town of 10 Amesbury for traffic control; correct?
11 A (Callendrello) Yes, they would.
12 But I guess I don't see the difficulty in that, to 13 tell a National Guardsman or an individual in uniform, go to 14 this intersection, here is a map, you will see a state 15 trooper there, do what he is doing and relieve him.
16 I just don't see the dif ficulty in that. These 17 individuals do this for other types of emergencies.
18 Q Do you think that --
19 A (Callendrello) They deploy the National Guard for 20 snow storms. They deploy the National Guard for civil That is what they are trained to do. They 21 disturbances.
are trained to respond in all types of situations, including 22 23 situations of domestic emergencies.
24 Q You believe the instruction that you just gave 25 would be an adequate instruction to a National Guardsman in Heritage Reporting Corporation
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1 REBUTTAL PANEL NO. 21 - CROSS 23722 j 1 this situation?
2 Go out to that intersection and when you see a 3 state trooper meet up with him and do what he has been ,
I 4 doing?
5 A (Callendrello) Well, I --
6 JUDGE SMITH: Mr. Fierce.
7 MR. FIERCE: Well, that's --
8 JUDGE SMITH: We're running it into the ground.
9 MR. FIERCE: It's absurd to the point --
10 JUDGE SMITH: You're eliciting such improbable 11 circumstances that it is with the utmost discipline that the 12 Board can continue to focus its attention on your cross-13 examination.
14 Now, move along, get some results from your 15 examination.
16 He is entirely correct. Mr. Callendrello, that 17 is.
18 Move along.
19 20 l
l 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
i REBUTTAL PANEL NO. 21 - CROSS' 23723
.1 BY MR. . FIERCE:
2 Q On the next page, Panel, there is a reference to
()
I 3 an interrogatory answer from the Mass AG's supplemental f 4 response to the NRC's first set.
5 A (Callendrello) ' Excuse me, Mr. Fierce.
6 Are you on page 16? j 7 Q I'm on page 15.
8 I have them right.here. No, I've misplaced them.
9 JUDGE SMITH: While you are gathering this 10 together, let's take a shorter than usual afternoon break. l Okay, I have it here. But if you j 11 MR. FIERCE: i 12 want to break now, that's fine. l l
13 JUDGE SMITH: All right. Ten minutes in this 14 instance. No more. A real 10 minutes.
15 (Whereupon, a recess was taken.)
16- JUDGE SMITH: Mr. Fierce?
17 MR. FIERCE: Mr. Trout had something he wanted to 18 raise at this time, Your Honor.
19 MR. TROUT: Your Honor, this morning Applicants 20 distributed a piece of prefiled testimony on reception )
21 center parking. And I have been informed that in my haste d
22 in leaving the office this morning I brought -- I ;
23 distributed in the courtroom a superceded draft of that !
J 24 testimony.
25 I have replaced with the correct draft the copies l
1
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F REBUTTAL PANEL NO. 21 - CROSS 23724 1 of all the parties, but the members of the Board and Mr.
2 Pierce have the superceded drafts. And so I would just now 3 give you the correct draft, and I will take back the 4 superceded draft and thus not in the aggregate to your load 5 of paper, e I've also distributed to the other parties, and I i
7 will distribute now to the Board another pleading that I
8 Applicants are filing today.
9 The filings that went out from Applicants' office 10 were the correct drafts.
11 (Documents prof fered to the Board. )
12 JUDGE COLE: You mean the supplement to Applicants j 13 Rebuttal 177 14 MR. TROUT: Yes, Your Honor.
15 MR. FIERCE: Mr. Chairman, I spoke to Mr.
16 Traficonte who indicated to me that he would like to make a 17 request that rather than beginning argument on the motion, j I
18 the Goble motion in limine at 4:00, he thinks it might be 19 better to start a little bit sooner, perhaps at 3:30 just 20 to make sure that it does get concluded today.
21 JUDGE SMITH: Well, that's a good idea, because we 22 looked at it and we thought that it was going to be very l
23 time consuming.
24 MR. TRAFICONTE: Your Honor, I spent the interim 25 reviewing it, and it is going to be fairly time consuming.
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'l I just don't want to'be a situation since the whole point is O
i 2 to have it.in advance of the witness's arrival, I don't want
}. w/[
3- -to be cut off and not have it resolved.
4 JUDGE SMITH: How much more do you have to go yet, 5 Mr. Fierce?
6 . MR . FIERCE: I clearly have some that will take me 7 into tomorrow, and the issue would be whether I would be 8 able between 8:30 and whatever the Board's pleasure is to 9 conclude it. So I think it's kind of touch and go as to whether we will get to Mr. Goble tomorrow. But I can't rule 10 11 it out.
' JUDGE SMITH: You had a significant under-12 13 estimation of the time it would take.
14 MR. FIERCE: I did.
I 15 JUDGE SMITH: Okay.
-\_)
16 MR. FIERCE: Many of these points are small ones, 17 and I thought I could -- every time I think I can do a small 18 point, it seems to take quite a bit longer.
19 This is one I've got right here, a housekeeping 20 matter, I want to add a sentence from the interrogatory 21 answer to part of what has been quoted here in the testimony 22 if we're ready to proceed.
23 Is that the Board's pleasure, to pick up the 24 motion at 3:30?
Well, that's fine. But you know 25 JUDGE SMITH:
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REBUTTAL PANEL NO. 21 - CROSS 23726 j 1
1 what had occurred to me, much of your examination of this j 2 Panel is the things that relates to a void of information, 3 particularly -- well, to earlier plans and other plans.
4 Some of think I would have thought could have been 5 stipulated. I don't think it's going to be worthwhile to 6 try now, however.
7 MR. FIERCE: My comment would be that we've got 8 lots of facts about state agencies. There are numbers, 9 There are statements made. Obviously, the Applicants are 10 trying to enhance the capability. I'm trying to go through 11 the testimony to point out what the limitations are.
12 JUDGE SMITH: All right, go ahead.
13 MR. FIERCE: What the realities are.
14 JUDGE SMITH: I don't think there is any 15 possibil/ sty.
16 MR. FIERCE: My observation would be that it's not 17 very interesting. It happens to be perhaps very important, 18 but it's just not very interesting. And that may be a 19 stbject of some of our impatience here.
20 JUDGE SMITH: That's right.
21 MR. FIERCE: Here's a good example.
22 (Laughter) 23 BY MR. FIERCE:
24 0 On page 15, Panel, at the top of the page in the 25 first full paragraph is a quote from an interrogatory l
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..,,3 REBUTTAL PANEL NO. 21 - CROSS 23727 1 answer, the Staff's first set of interrogatories and first m.
request for documents dated October 24. And the sentence s ) 2 3 reads, "As of October 13, 1988, the authorized strength of 4 the troop units assigned to the National Guard was 16,407."
, 5 MR. FIERCE: Your Honor, at this time I would like 6 to read into the record rather than passing it out one 7 additional sentence which follows directly in the 8 interrogatory answer after the sentence quoted, and I've mentioned and shown this sentence to the Applicants. And I 9
10 believe I am reading it into the record without their 11 objection.
I That sentence reads as follows: "That number 12 13 constitutes what the United States Department of the Army 14 and the United States Air Force have assigned to the fs x,, 15 Massachusetts National Guard."
MR. LEWALD: Your Honor, I think, in light of 16 17 reading that, the first sentence of the paragraph referred 18 to also ought to be read into the record which says that, 19 "Information pertaining to the assigned strength of any unit 20 or units of the National Guard is classified information."
.71 MR. FIERCE: Well, then we're going to have to 22 read the next sentence which is, "However, the Mass AG will 23 produce a list provided by the National Guard which provides 24 the location of units in Massachusetts."
25 JUDGE SMITH: So we simply don't know how many Heritage Reporting Corporation
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i REBUTTAL PANEL NO. 21 - CROSS 23728 1 National Guard troopers there are.
2 MR. FIERCE: That's correct.
3 I'll be prepared to break off whenever Your Honor 4 so indicates, but I will proceed with your permission.
5 JUDGE SMITH: Who is your counterpart on this?
6 Mr. Trout?
7 MR. TROUT: Yes, Your Honor.
8 MR. FIERCE: Should I proceed, Your Honor?
9 JUDGE SMITH: Yes, please.
10 BY MR. FIERCE:
11 Q Panel, do you happen to know how many National 12 Guardsmen could actually be mobilized into the field today 13 if there were an emergency in Massachusetts?
14 A (Callendrello) I have no other information beyond 15 what was given in the interrogatory response.
16 Q Okay, fine.
17 A (Callendrello) No, I don't have any other 18 information.
19 Q In the next paragraph on the Panel's testimony 20 there is reference to an MOU, a memorandum of understanding l
21 between the Civil Defense Agency and the National Guard, and 22 it's attached to your testimony as Attachment D.
23 The National Guard, in its interrogatory response, 24 indicated that there was no memorandum of understanding with 25 respect to an emergency at Seabrook.
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- REBUTTAL PANEL NO.. 21 - CROSS:
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. .1~ And, yet, the Panel seems to indicate that the And my 2 . Attachment D MOU is assumed to be in effect.
3 question would be what is the' basis for that assumption. !
4 Just what is stated here? ,
i We felt the 5 A (Callendrello) That's correct.
i 6' possibility. existed that.the National Guard-did not recall ;
l 7 or was not made aware of the fact that there was a 1984 '
l 8'
memorandum of understanding signed by both Director Boulay' 9 and the Adjutant General ~of the Massachusetts National .l
.i 10 Guard. !
11 Q. It's conceivable that that memorandum of l q
12 understanding was superceded by the governor's directive of a correct? j 13 April 86 to seesaw planning efforts for Seabrook, You're asking me is it u 14 A (Callendrello) -l 1
- ( '
15 conceivable?
16 Q Yes.
17 -A (Callendrello) Oh, it's conceivable. I
.]
18 Q And that in fact the National Guard are not l 19 referring to the 1984 MOU at this time.
(Callendrello) That is conceivable.
I don't 20 A p
i 21 think that that eliminates the National Guard as a response i
~
22 organization. In fact, I'm sure it does not.
23' O Is it the Panel's opinion that in fact the 24 National Guard would follow that 1984 MOU if there were an 'l L 25 emergency today for Seabrook?
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ll REBUTTAL PANEL NO. 21 - CROSS 23730 1 A (Callendrello) If you are asking me to comment on 2 whether the interrogatory response was correct or not, I've 3 got to take the interrogatory response as it stands.
4 What we're trying to bring to everyone's attention 5 is the first sentence of that response that says, "Because 6 no memoranda of understanding with respect to an emergency 7 response at Seabrook have been entered into," and we wanted 8 to show that there had been at one time a memorandum of 9 understanding. That there was at least at one point an 10 understanding between Civil Defense and the National Guard 11 as to what their role and roles were in response to an 12 emergency at Seabrook Station.
13 Q On the bottom part of page 15, the Panel's 14 testimony moves on to the Massachusetts Bay Transit 15 Authority, the MBTA. And again, this isn't a rewrite of the
- 16. interrogatory answer that is Mass Attorney General's Exhibit 17 109.
18 Is it fair to assume that the Panel did not have 19 information about the MBTA beyond that interrogatory answer?
20 A (Callendrello) I think there were two answers to 21 interrogatories.
22 Q Strike that.
23 Bayond those two answers that are referred to here 24 in the testimony?
25 A (Callendrello) That's correct.
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.i REBUTTAL PANEL WO. 21 - CROSS 23731- !
1 You lost ne a little bit. You.said that there was
.\
i 2 a change in the interrogatory response from what we had 3 indicated in the testimony?
i 4 Q No , no , no, no. I just indicated as just-a L 5 comment that once again I see that the quotes about the MBTA l I
6 from the interrogatory answer that was MAG 109, MAG Exhibit ;
109, in fact are not the entire interrogatory answer, and 7
8 just noting that for the record. !
9 A (Callendrello) That's correct. 'l j
10 0 You have offered in Applicants' Exhibit No. 58, 1 j
11 which is an MBTA resource development plan. l 12 Do you have that, Panel? :l a
A (Ca11endre11o) Yes, I do, 13 i 14 O At page 9 it says there, does it not, that the 1 l
s
( 15 general manager will develop internal procedures to l
16- implement that plan? I 17 A (Callendrello) I'm sorry, are you on global page ,
l 1 18 97 It's global page 11. I've got it.
19 ;
20 0 Global page 11.
1 q
21 Do you see that? I (Callendrello) The statement is, " General manager 22 A l 23' of MBTA will develop internal procedures to implement this l i
Which 24 plan as the responsibility of the general manager."
is what this plan is, are the internal procedures. )
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REBUTTAL PANEL NO. 21 - CROSS 23732 1 Q Well, it looks like this document suggests that 2 there will be further internal procedures to implement this 3 plan. I would like to know if you know whether the general 4 manager has in fact done that, developed internal procedures 5 to implement this plan.
6 A (Callendrello) I'm mistaken. These are not the 7 internal procedures. I'm just looking through this 8 document. These are not the internal procedures. This is 9 the MBTA deployment plan.
10 I do not know what the status is of the internal 11 procedures, l
12 Q Thie is an old deployment plan for Seabrook?
13 A (Callendrello) This is a 1984 deployment plan for 14 Seabrook. This is the plan that we were told in an 15 interrogatory response would be used by the META.
16 Q And as far as you know, they have not developed 17 those internal procedures.
18 A (Callandrello) I do not know one wcy or the other 19 whether they have.
20 Q This point also relies on local EPZ communities to 21 designate and train" guides and also pilots for routes and 22 mission assignments. That's on globs.1 page 22. Guides and 23 pilots are mentiened at the top.
24 Do you see that?
25 A (Callendrello) Yes. Yes, I do.
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REBUTTAL PANEL NO. 21 - CROSS 23733 1_ -Q And they'are to, " develop and keep. current.a 2 utilization plan to use-the resources committed to this 3 plan."
l 4 A' (Callendrello) I see that, 5 Q Have local utilization plans been developed and 6 kept current?
7 A (Callendrello) I don't.know what the local EPZ B- communities have developed for utilization plans beyond what 9 was contained in the 1986 RERP and the other disaster plans 10 .that have been provided.
11 There is, however, as everybody is aware, an SPMC 12 plan for deployment of vehicle resources that includes 13 utilization and includes route guides to direct buses to 14 their assignments.
[ -15 0 .Well, I'm familiar with the SPMC.
(
16 But with respect to the local communities, you 17 have no information regarding whether the local communities
- 18. today would have guides or pilots for the MBTA buses that 19 might be sent to those communities?
20 A \Callendrello) No, I do not have any information 21 about that. Again, beyond what is in the 1986 plan.
22 23 24 25 Heritage Reporting Corporation y'
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REBUTTAL PANEL 510. 21 - CROSS 23734 1 Q This plan also results in evacuees being bused to 2 Peabody and Andover, the old reception centers; correct?
3 A (Callendrello) Yes, it does.
4 Q This plan wouldn't work today, would it, Mr.
5 Callendrello?
6 A (Callendrello) Portions of it would work.
7 There's a lot to a plan. If you tell me that the 8 Commonwealth will make 1,000 buses available at the 9 Topsfield Fairgrounds, we'll treat that like any other bus 10 yard, send route guides and bring those people into the EPZ 11 to help move individuals.
I 12 O This plan, however, apart from the SrMC, busing is 13 people to Peabody and Andover isn't going to work today, 14 it?
15 A (Callendrello) This plan -- I'm sorry, I'm having 16 trouble with the question.
17 Q Let me back up.
18 If the state were to send people to those 91d designated reception centers in Peabody and Andover., who 19 20 would be there to receive them?
21 A (Callendrello) If the state sent them there?
22 O NBTA.
23 A (Callendrello) If MBTA took them there.
24 Those are not the reception centers that are in 25 the SPMC.
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!L REBUTTAL PANEL NO. 21 - CROSS 23735 1 QL Correct.
(2' A. (Callendrello) So there would be no ORO 3 personnel.
4- I don't believe the Commonwealth would staff those 5' as well, although I suppose it is possible.
6 Q There are no current staffing plans for facilities-
.7 in North Andover -- excuse me, Andover or Peabody; correct?
8 A (Callendrello) Again, there were host plans.
L 9 Q There were?
10 Three. years ago?
11 A (Callendrello) Correct.
12 Q Staffing lists have not been maintained in the 13 past three years; correct?
14 A (Callendrello) That's correct.
15 Q No' drills or exercises have occurred in the past k
16 three years. No training has occurred?
17 A (Callendrello) None specific to Seabrook.
18 Q Cn page 16 there's a reference to the 1,032 buses 19 ' maintained by the MBTA.
20 Well, two points again, one is a small one. It's 21 just a cor:*ection in the testimony. You cite to Mass AG 22 responses, first set.
23 MR. FIERCE: I believe the Board needs the Mass 24 AG's second supplemental response to the NRC Staff's first 25 set, just for reference purposes. I think that's correct.
l:
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REBUTTAL PANEL NO. 21 - CROSS 23736 THE WITNESS: (Callendrello) Let me just check 1
2 it.
3 BY MR. FIERCE:
4 Q Do you want to check that, Mr. Callendrello?
5 A (Callendrello) Yes, please.
6 (Witness reviewing document. )
7 THE WITNESS: (Callendrello) Yes.
8 It's Massachusetts Attorney General second 9 supplemental response to NRC Staff's first set of 10 interrogatories and first request for documents, dated --
I think it's 12-19.
11 there is no date on the one I have.
12 BY M". FIERCE:
13 Q Most of those buses that were identified in those 14 responses, those answers, are located in Boston and its 15 neighborhoods; correct?
16 A (Callendrello) Yes, they are.
17 O Many of them would be in use at the time if an 18 emergency were to occur in the rush hour and in the morning 19 or in the afternoon; isn't that correct?
20 A (Callendrellc) I don't see anything in the
?1 interrogatory response that indicates that. But common
- 42 sense would tell me that those bases are there to move i
23 commuterse so that they would be in use, 24 Q Next we come to the Massachusetts Department of.
25 Public Health.
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23737 REBUTTAL PANEL'NO. 21 - CROSS
,a 1 'MR.. FIERCE: Again, I'll just note that not the
-2 entire interrogatory answer has been quoted here in the q,,
3 testimony on page 16.
4 BY MR. FIERCE: i 5 Q Down at the bottom of the page in the paragraph 6 that begins there, the sentence reads: "The radiation l 7 control program director or his designee would evaluate 8 information received from the ORO on offsite conditions and
-9 onsite plant data and relay recommendations back to the 10 senior MDPH official in Framingham. This information flow 11 'would parallel that utilized for responses to Vermont Yankee 3
12 and Yankee-Rowe." ;
f 13 Can you tell'me where that information comes from? .1 A (Callendrello) It comes from the NIAT handbook on
,e .
14 i )
l 'N. L 15 page 8 of 253. Number 59. j 16 Q On page 5 of 253 in the NIAT handbook under 17 " scope" there's a statement that states as follows, quote:
)
18 "In-the case of nuclear power plants the department has 19 specific response plans for each plant which are integrated 20 with those local, state, and federal agencies and the 21 utility."
22 Isn't it true that the Department of Public Health 23 has no specific rerponse plan for Seabrook?
24 A (Callendrello) This is the same problem I'm 25 having with these questions about specific plans.
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REBUTTAL PANEL'NO. 21 - CROSS 23738 1 This plan is a specific response to a radiological 2 emergency. It contains information that is generic in 3 nature, but would be as applicable to Seabrook as it would 4 be to any other site.
5 It also does contain Seabrook-specific information 6 regarding telephone numbers; location of facilities; contact I
7 individuals.
8 The only thing I can say is that some sites have 9 more site-specific information than there is for Seabrook. l 10 But I would maintain that this plan is specific to Seabrook.
11 For example, if you look at page 86 of 253 it 12 describes the deployment time for NIAT members to Seabrook.
13 If you look at page 34 it contains the telephone 14 numbers, locations, contact titles for Seabrook Station.
15 So I would maintain that this is specific to 16 Seabrook.
17 Q But as to my question, Mr. Callendrello, the 10 statement in the NIAT that the department has specific 19 response plans for each power plant, beyond this volume here 20 there are no specific DPH plans for Seabrook?
21 (Witness reviewing document. )
22 THE WITNESS? (Callendrello) In Exhibit 55 -- in 23 Applicants Exhibit 55 there is a Seabrcok Station specific 24 exhibit, Exhibit A-5 beginning on page 172 which does 25 contain Seabrook-specific information and includes Heritage Reporting Corporation (202) 628-4888
_ _ _ _ - _ _ _ _ _ l
REBUTTAL PANEL NO. 2.1 - CROSS 23739 1 information related to the NIAT response to an emergency at 2' Seabrook Station.
kf Page number 52?
3 MS. GREER:
4 THE WITNESS: (Callendrello) 172.
2,--
5 The specifics for the health department are on 6 page 183, 184. Those are the principal areas.
7 And you note that in those two pages I referenced,. .
8 the plan takes you back.to the NIAT' handbook for 9 implementation of the actions.
10 JUDGE SMITH: It's almost 3:30. Can you possibly 11 pick a logical breaking' point?
12 MR. FIERCE: All right.
13 Well, I was hoping, perhaps, I could finish public j,
14 health, but I won't be able to do that in just a few 15 minutes.
16 Do you'want to break now?
17 JUDGE SMITH: I think it would be good if.you
.18 finished it.
19 MR. FIERCE: Okay.
20 JUDGE SMITH: It's your call, Mr. Traficonte.
21 MR. TRAFICONTE: The only concern I have is, if we 22 could argue and it's done in an hour, then we could just 23 resume.
24 JUDGE SMITH: Well, that's a good point.
MR. TRAFICONTE: I think that's the way we should 25 Heritage Reporting Corporation (202) 628-4888 i
l
.(
23740 1 do it. I just want to make sure we have enough time to get 2 the motion in limine resolved.
3 MR. FIERCE: I have no objection to stopping now.
4 JUDGE SMITH: Okay.
5 MR. LEWALD: You are allocating one-hour for the i 6 argument? j l 7 MR. TRAFICONTE: Am I?
l 8 MR. LEWALD: Yes.
9 MR. TRAFICONTE: I'm not doing anything of the 10 kind. I'm just trying to make sure we get it resolved.
11 12 13 14 15 16 17 18 19 20 21 22 23 1
24 25 i
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MR. TRAFICONTE: Your Honors, before we turn-to 1
%/
. ( ,/
'2 the motion, could I just.make a statement or.two on the Chan 3 record concerning some discussions I have had with Ms.
l ,
4 for the NRC Staff which I hope has resolved the issue of any 5 need on our part to seek interlocutory review with regard'to 6 .the motion -- the portion of the motion that the Board ruled
'7 on.this morning.
8 The Staff has indicated to me that they are going 9 to be retaining up until a point in the future when the 10 merits are reached and decided, the staff inspectors who are 11 presenting evaluating low-power testing are going to be 12 retaining all the documents that they generate during their 13 review.
k- 14 These would be -- call them supporting materials
,f
- q
- 15. that would eventually support a report, an official report, that:the Staff prepares..
The Staff is going to be retaining 16 these documents; that's number one. At least until the 17 18 merits on this issue are determined.
19 Tomorrow the Mass AG is going to hand deliver to 20 Ms. Chan a FOIA request for the production of this material, 21 so that we will be on record with some official request to 22 the agency to make these documents available to us.
23 It occurred to ne during the break that we will be 24 in the same situati.on vis-a-vis thi s Board in a period of 25 weeks that we are in now if we seek from the Eoard in three Heritage Reporting Corporation fs (202) 628-4888
23742 1 weeks, assuming that we have had success on our motion, if 2 we seek from the Board an order to the Staff to make 3 available to us these supporting materials and reports.
4 I would anticipate the Board would have the same problem.
5 about ordering some form of discovery before a contention 6 has been admitted.
7 So the fact that the Staff is retaining these 8 documents is a very, very good thing. It isn't, however, 9 going to solve what I think is kind of a catch-22 that we 10 may be in, which is we don't have the documents, we don't 11 have access, and we can't get discovery from the Board until 12 a contention with the requisite specificity basis is 13 admitted.
14 The onlj solution that I can concoct, at this 15 present time, is to put a FOIA request out. Wait until the 16 merits are reached and determined. And in the event that we 17 are determined to have a hearing right, try to accommodate 18 that from a scheduling perspective so that enough documents 19 are produced to us in a timely fashion from which we could 20 then turn around contentions, in the event that there are 21 contentions worth filing.
22 I t hink tht? " s obvingsly not what we were sesking.
23 But in light of the procedural complexity, we are satisfied 24 with that. And I just wanted to al<trt the parties to the 25 fact that in that posture we are not going to seek {
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23743 1 interlocutory review at this time.
. f"~'
( 2 The only additional comment I want to make is that v
'3 Ms. Chan made it very clear to me that the_ licensee is It is 4 producing documents while low-power testing proceeds. i And it's producing,.
5 producing records of reactor effects. .l l
-6 no doubt,. logs of different types. There is a' documentation .l 7 produced by the licensee. That documentation does not come l 8 into the possession of the NRC Staff. l 9 It may be reviewed at certain points by that 10 Staff, but it isn't physically taken into possession. l 11 So Ms. Chan and I both want to represent that the l documents that are being retained do not include licensee 12 i
13 generated documents.
g 14 Obviously, I would like to request on the record l 15 of Mr. Lewald that the licensee make the same representation 16 pending determination on the merits of the motion, that the 17 licensee simply do what the Staff is doing, which is to 18 retain the documents that it is generating and in many cases 19 making available for review, that it also retain these 20 documents pending some resolution on the merits. ;
j 2I I appreciate that I'm in an odd posture because 22 the Scard can't order that. But I want to nake the request 23 on the record in the event that at some future time those 24 documents simply are not ava!.lable to us.
25 JUDGE SMITH: So in effect, you are just using our Heritage Reporting Corporation L\ (202) 628-4888 l 1
l 23744 1 transcript service here. Which is all right.
2 MR. TRAFICONTE: Yes. As long as it's all right, 3 I'll accede that is what I'm doing.
4 MS. CHAN: Mr. Traficonte, I only have one 5 request, that the FOIA request go directly to the Washington 6 office.
7 MR. TRAFICONTE: All right, we will do that.
8 (Pause . )
9 JUDGE SMITH: Did you respond?
10 MR. TRAFICONTE: I think silence -- what was I 11 taught in law school? Silence is somehow acceding?
12 MR. TROUT: No.
13 MR. LEWALD: To the extent that I am to respond to 14 the request, 1 am in no position to accede to it.
15 It seems te 90 this is just the same thing that 16 was argued this morning with regard to discovery. It is a 17 just another phase of it.
18 It would appear now that Mr. Traficonte is trying 19 to preserve records for discovery to search out to see 20 whether he car. generate a contention.
21 MR. TRAFICONTE: We' re not asking thet they be 22 produced. We are just asking that they be preserved in the 23 event that we at seme future point get a contention admitted 24 and could then seek to discovery them.
25 MR. LEWALD: Well, I am in no position to commit Heritage Reporting Corporation (202) 628-4888 1
23745 I the client to.do anything the client wouldn't ordinarily do 2' with respect to the-records that it's generating, e b Also, Mr. Traficonte, just to clarify. j 3 MS. CHAN:
l 4 . exactly what our conversation was. !
5 There were two special reports that the Staff :
I 6 generates.- They'are special team reports on pre-low power j 7 testing and low power testing;.and all those documents.and 8 notes will be retained. )
1 9 However, as to regular routine inspection reports .j 10 the normal document retention policies would apply.
11 MR. TRAFICONTE: That is our understanding as
- 12. well. .l 13 (The Board confers.)
i 14 JUDGE SMITH: All right. 1
('
n
- 15 Are you ready to address the motion?
16 MR. TRAFICONTE: Yes, I am, Your Honor. )
I 17 I.would just proceed, basically, taking each of ]
j 18 the items. )
19 JUDGE SMITH: I might warn you that this exercise,.
20 we have been through it quite a few times.
, - 2.1 MR. TRAFICONTE: Yes.,
22 JUDGE SMITH: It is very difficult. And you have 23 to go a piece at t time.
24 MR. TRAFICONTE: Yes.
25 JUDGE SMITH: A step at a time and in a very Heritage Reporting Corporation (202) 628-4888
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L.
l 23746 1 deliberate fashion, because it is very hard to follow. 1
(
2 MR. TRAFICONTE: That was my intent, to basically 3 take it item-by-item.
4 I would like to respond first to paragraph number l 5 one on page 2 of the motion. And I would like to respond to 6 all three points in the motion, that's to say the references 7 to page 5 and 6. The reference to page 16. And the 8 reference to page 22.
9 I have reviewed those and I believe that what we 10 had here is simply the witness attempting to put into 11 context, for purposes of, I believe, simply explanation and 12 basic discussion, his understanding of the character of this 13 particular accident that was modeled for the June '88 14 exercise.
15 I don't believe the intent of those sentences is 16 in any fashion to criticize in the vein of a scope 17 contention, for example, that this was not an appropriate 18 accident to use as the scenario.
19 Instead, it's simply Dr. Goble placing this 20 paa ticular accident in the context of the accident scenarios 21 that emergency plans basically are to be j udged against.
22 MR. TROUT: Your Honor, if the Attorney General 23 will stipulate that no allegation is being made as to the 24 sufficiency of the release that was modeled in the exercise, 25 and that no proposed findings will be offered attacking the Heritage Reporting Corporation (202) 628-4888
23747 ,
exercise or Applicants performance on those basis, then
~
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() 2 ' Applicants will withdraw that part of the motion.
3' MR. TRAFICONTE:- Yes.
l l 4 The operant phrase there was, "Or Applicants l
)
5 . performance." And obviously, we' re not going to stipulate- a 6' that we're not challenging Applicants performance. i l
7- JUDGE SMITH: Well, he makes a statement here in i
8 the front page that the postulated accident did not pose _a- j
\
9 severe test of the effectiveness of the plans. l l
10 Now, that sure means that the exercise didn't do what-an exercise is supposed to do. Unless this is to be _j 11 12 read-that there was no requirement to pose a severe test. l MR. TRAFICONTE: We'll stipulate that there is --
-13 14 we are not intending to proposed findings,.that somehow this j k_s '15- statement should be read as evidence that the accident model 16 was inappropriate.
It's an empirical statement. It did not impose _a 17 1'
18 severe test. It was a relatively moderate accident, slow 19 developing.
JUDGE SMITH: No inference can be drawn from any 20 21 of these citatians then that the accident exercise was 22 insufficient for the purposes of the exercise.
1 23 MR. TRAFICONTE: In the context of PAR l i,
24 determination.
25 JUDGE SMITH: Right.
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23748 1 MR. TRAFICONTE: That's correct.
2 No negative inference should be drawn.
3 JUDGE SMITH: And you're satisfied with that?
4 MR. TROUT: Yes, Your Honor.
5 JUDGE SMITH: So we just resolve it on that basis 6 and move on.
7 MR. TROUT: Do we have that stipulation from the 8 Attorney General? On the basis of that stipulation, 9 Applicants would withdraw that paragraph of the motion.
10 MR. TRAFICONTE: We will so stipulate.
11 Now the next item is a point that, frankly, I 12 don't think is of great significant. But having reviewed 13 the testimony as to the phrase at the bottom of page 9, 14 which alleges that in the event of an accident it would be a 15 point of low public confidence, I believe that the witness 16 is simply providing the basis for his opinion that an 17 independent check of the PARS coming out of the ERO should 1B be made.
19 And I think the witness is simply indicating at 20 that point in his testimony, one of the reasons why I think 21 it shou 2d be made is because you want to have the public 22 believe that the PAR that they are hearing is coming from a 23 credible, competent source, particularly when that source is 24 - particularly at a point at which public confidence in i 25 that source would have ebbed because there's an accident.
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1 23749 1 I don't think it's anything more than a basis for 2 his opinion.
3 ' JUDGE SMITH: And that's exactly what Mr. Trout 4 ' objects to, I believe.- I think Mr. Trout probably agrees 5 with you and objects nevertheless, and.in particular.
6- MR. TRAFICONTE: I'm not sure why the expert is 7' not free to provide the basis for the opinion that he-sets 8 forth here~'. It doesn't run'to whether or not there would --
9 this is his opinion -- it doesn't run to whether or not we-10 would seek a finding that there would be low public 11 confidence.
12 But it supports the expert's view of why an 13 independent check by the offsite organization is necessary.
14 JUDGE SMITH: Well, then, however, to follow your 15 logic through, we should not find that an offsite check is 26 necessary. If we don't accept his predicate,'then we'can't-17 accept his conclusion.
18 MR. TRAFICONTE: Then I'm at a loss, frankly, to 19 .see what the basis of the motion in limine is exactly.
- 2) We' re not contesting -- there is not an issue, at least in 21 this regard, as to whether public confidence will'be high or 22 low.
23 JUDGE SMITH: That's right.
24 MR. TRAF1 CONTE: I mean, 1 appreciate that.
25 The fact that there is no contention in that
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23750 j
! I regard doesn't mean that an expert can't state his opinion 2 as to why there should be an independent check on PARS, and 3 indicate when asked, why do you think that? And he happens 4 to hold the view that, well, you need that because public 5 confidence would be at a low.
6 I guess I just, you know, why is that an 7 inadmissible --
8 JUDGE SMITH: Well, can we accept then his opinion 9 that an independent check is necessary, if we do not accept 10 his premise for it? Can we?
11 MR. TRAFICONTE: I think the answer is, it's not 12 that you -- I don't think the issue --
13 JUDGE SMITH: What if he said, an independent 14 assessment capability would provide a necessary to check to 15 reduce the likelihood of mistakes. Well, what if he would 16 have said, an independent check is necessary. Because even 17 though the regulation doesn't require it, I think it should 18 require it.
19 I don't understand your logic. He is recommending 20 two reasons for an independent check. One reason is an 21 impermissible reason. Legally, procedurally, evidentiarily 22 impermissible reason.
23 MR. TRAFICONTE: Well, I guess I have trouble 24 understanding why it's impermissible. Just because that 25 issue is not before the Board, why is it impermissible for Heritage Reporting Corporation (202) 628-4888 1
l l
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23751 -l 1; him'to support lhis opinion on the need for an independent L/^ ..
check based on his belief that public confidence would be
)
l{ 12:
I
!. 3 low. That's the link-that I don't --
, l4 : JUDGE SMITH: Because you will take a matter which 5 is not in issue and you will attach it to an opinion, and
'l 6 you'thereby bring it into issue by attaching it to an j l'
7 opinion, not only are you bringing it.into issue, but you 8 -- I" guess I just cannot explain it. To me it's just a 9 fundamental,-logical connection.
l 10 If his opinion is based upon a rejected or a 11 matter that is not in issue, and his opinion prevails based 12 upon that, then the issue prevails.
13 MR. TRAFICONTE: We may just not be able to 14 communicate further on it.
( 15 I understand what Your Honor has indicated. My 16 answer basically would remain that what we have here is 17 simply an instance of an expert providing the basis for his 18 opinion.
19 It appears that when he states that basis he touches an area that is not in litigation. But I'm not sure 20 that's grounds for making that basis inadmissible. That's 21 22 the link I don't see.
23 I have nothing to add other than this is a 24 statement for the basis of his opinion.
25 I guess what I'm getting at is, I don't think that
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23752 1 every' time an expert states the basis for his opinion that 2 those bases thereby --
3 JUDGE SMITH: If it bootstraps an issue into 4 litigation, which is not otherwise there --
5 MR. TRAFICONTE: Well, then maybe we need another 6 stipulation. Maybe the way to handle this is, maybe the 7 Applicants think that we would be seeking a finding via this 8 testimony, that public confidence would be at a low in the 9 event of an accident.
10 I don't know why we would propose that finding.
11 JUDGE SMITH: Well, how would you then propose 12 that we handle his conclusion based upon that belief?
13 Disregard the belief?
14 MR. TRAFICONTE: I would seek the finding -- if I 15 were writing proposed findings on this portion of the case, 16 I would seek the finding that an independent assessment 17 capability is necessary.
18 JUDGE SMITH: Why?
19 (Pause) 20 JUDGE SMITH: Because Goble says so?
21 22 23
[
24 25 l
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23753 l' PG1. TRAFICONTE: You need double check. You Y 2 could make mistakes.
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JUDGE SMITH: All right.
3 4 MR. TRAFICONTE: And because public confidence 5 would be at a low.
6 JUDGE SMITH: I think you are losing.
7 MR. TRAFICONTE: -All right. With respect to that 8 motion, let's not take the time to actually identify the-9 language. I see it. It's on the bottom of page 9. The
- 10. word "both" and the rest of the sentence following 11 " mistakes" is to be deleted.
12 MR. TRAFICONTE: All right, turning to the next 13 item which is on page 3 of the motion, Item No. 3, testimony 14 on ERFA size.
t 15 Now, I would direct the Board's attention to MAG 1 46 Exercise Contention 11, Basis B, No. 3.
17 The Board has available to it a document dated 18 February 23rd. Okay, page --
19 JUDGE SMITH: That's the one. If we could use 20 that as our common 21 MR. TRAFICONTE: Yes, page 108. We have that same 22 document. It's page 108. Maybe I should identify it so the 23 record is clear.
24 I'm referring to a February 23, 1989 filing the 25 Applicants made, and it's called Joint Intervenor Beritage Reporting Corporation (202) 628-4888
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l 1 Contentions on the Seabrook Plan for Massachusetts 2 Communities and the June 1988 Graded Exercise.
3 JUDGE SMITH: I think, Mr. Traficonte, you have 4 never gone through this exercise.
5 MR. TRAFICONTE: No.
6 JUDGE SMITH: And it's already developed a 7 familiar pattern. .
8 MR. TRAFICONTE: All right.
9 JUDGE SMITH: What happens is you point to a 10 contention and a basis where it's not expressly stated in 11 there, and I'm not talking about this one, because I haven't 12 read it yet.
13 MR. TRAFICONTE: Right.
14 JUDGE SMITH: But it's not expressly stated there, 15 but you say, well, you know, it's to be assumed that that 16 would be just an evidentiary aspect of it.
17 And then Mr. Trout comes back and he says, well, 18 wait a minute. Now we asked you on discovery --
19 MR. TRAFICONTE: You've heard this before.
20 (Laughter.)
21 JUDGE SMITH: Oh, yes. It's the same thing.
22 He says, we asked you on discovery. List all of 23 the reasons why you believe X to be the case.
24 MR. TRAFICONTE: Yes. l 25 JUDGE SMITH: And their answer was so and so, and i
i I
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23755 1 it does not include the specific in dispute.
7m The basic problem we have 2 MR. TRAFICONTE: Yes.
(-v 3 here is that much of this testimony is exercise-related.
4 There was no di6covery on the exercise, and Mr. Trout 5 doesn't have that particular arrow in his quiver.
JUDGE SMITH: Oh, all right. That's a good point.
6 7 So now we are going to have to determine on a 8 case-by-case basis whether the contention and its bases were 9 sufficiently specific.
MR. TRAFICONTE: Yes. And on this particular 10 11 item, which is the testimony on ERPA size, I would direct 12 the Board's attention to page 108, which is MAG Exercise 11, 13 Basis B, No. 3.
14 JUDGE SMITH: What do you think, Mr. Trout?
,~
{ \ Specifically -- I'm sorry, the s ,/ 15 MR. TRAFICONTE:
16 last sentence of that basis which says that there is a 17 fundamental need for greater flexibility in shaping the 18 appropriate PARS for the Massachusetts communities.
19 MR. TROUT: I'm still perplexed, Your Honor, by But 20 the apparent conflict between that language and JI-19.
21 I think Mr. Traficonte has got a point.
22 JUDGE SMITH: I do, too.
23 MR. TROUT: Yes.
24 JUDGE SMITH: You may have a conflict, but that 25 doesn't rule out the testimony, I don't believe.
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23756 1 MR. TROUT: Yes, I would agree.
2 MR. TRAFICONTE: All right.
3 Do we need rulings as we go, is that --
4 JUDGE SMITH: I think he has withdrawn his 5 objection as to that.
6 MR. TRAFICONTE: All right.
7 JUDGE SMITH: Haven't you?
8 MR. TROUT: Yes, Your Honor.
9 MR. TRAFICONTE: As to the next item which is No.
10 4, Testimony on ERO Training, I would direct the Board's 11 attention to MAG Exercise 19, Basis D.
12 JUDGE SMITH: Oh, we threw that out.
13 MR. TRAFICONTE: I know you did. You tried.
14 JUDGE SMITH: What page is that on?
15 MR. TRAFICONTE: It's on page 114. I hope you 16 didn't mark it off. I hope you can still read it.
17 JUDGE SMITH: I cut it out with a razor.
18 MR. TRAFICONTE: I didn't cross my out, so mine is 19 still legible.
20 JUDGE SMITH: All right.
21 MR. TRAFICONTE: And specifically, the last 22 sentence of that basis which asserts that the licensing 23 personnel merely passed on copies of METPAC without offering 24 any guidance on how much reliance the FARs contained therein 25 should be given.
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l' hit's that' basis, that sentence, in combination with what the EX-19 contention says in the contention L(. A). 2 3 statement that'I think would support.a challenge, or
- 4. supports the testimony referred to here that talks about the 5 . training of the ERO individuals.
6 'I think the problem we're having is Mr. Trout has 7 looked'at Exercise Contention -- he has looked at JI-13,'and.
8 he has.noted correctly that the personnel whose training we 9 are challenging in JI-13 do not include by name the onsite 10 staff. But the basis for Dr. Goble's critique of the ERO 11 training is our challenge to the capacity of the ERO to 12 generate appropriate PARS.
13 JUDGE SMITH: Well, we left up in the. air in our 14 ruling -- I wish this ruling could be rewritten because it f
.: does not give the guidance that the parties need.
15 16 What we stated, in Acoking at ALAB-903, we looked 17 at the Staff's argument. And the Staff states that the 18 METPAC issue is merely minor, readily correctable instance 19 of performance error.
20 Then we went on to say, "While it is quite 21 possible that the problem, if one exists, is readily 22 correctable, it is not at all evident that it is a minor 23 consideration. Both elements are important."
24 Now that's rather obscure language there, because ALAB says, yes, both elements must be necessary. And any
, ~25 l
l Heritage Reporting Corporation g (202) 628-4888
23758 l 1 element being missing, I believe, then the fundamental flaw 2 is not demonstrated by the exercise.
3 Necessarily then, we had to admit that contention 4 only if we believed that the problem is not readily
'S correctable. And this is my logic, the way I think it was, 6 and the only readily correctable aspects of it, I mean non-7 readily correctable aspects of it that we could envision 8 would be one that related to training.
9 MR. TRAFICONTE: Would be related to training.
10 JUDGE SMITH: Would be related to training.
11 In other words, I'm tending to agree with you, l 12 much to your -- you can't handle that really.
13 (Laughter.)
14 JUDGE SMITH: I caught you off guard there, I 15 believe.
16 MR. TRAFICONTE: You are right.
17 MR. TROUT: Your Honor, the board has struggled 18 and the parties have struggled mightily over the last five 19 months with this particular basis of this particular 20 contention. And for all of the struggling, a few things 21 have remained clear.
22 And one thing has remained clear is that the only 23 encroachment to onsite performance this Board allowed when 24 it admitted this basis was in the onsite performance in 25 communicating PARS --
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23759 1 JUDGE SMITH: That's true.
2 MR. TROUT: -- to the offsite organization. And
'3 that. understanding is --
4 JUDGE SMITH: That's true.
5 Well, I'm sorry, Mr. Trout, finish. I can see you 6 are going down the wrong trail, but finish.
7 (Laughter.)
8 MR. TRAFICONTE: So you can get'way off trail.
9 (Laughter.)
10 JUDGE SMITH: Sorry'to confuse you.
11 Do you want it read back?
12 MR. TROUT: No. I don't want to waste the Board's 13 time, though, with an argument that is not helpful.
14 JUDGE SMITH: Let me explain my answer to what you (O) 15 said so far.
16 MR. TROUT: All right.
17 JUDGE SMITH: As I explained earlier when we 18 rejected -- whatever we did to that -- expunged it, that it 19 had been the Board's practice to stop these exercise 20 contentions and the planning contentions, for that matter, 12 1 at.the plant boundary, except the communication of decision 22 made onsite.
23 And, therefore, I explained that when we were 24 looking at Basis D, we had in mind the advice we received 25 from ALAB-903. And I focused on the readily correctable and j .
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23760 1 minor or major defect aspect of it, and not on where we 2 regarded our jurisdiction.
3 And as you recall, Applicants prevailed in 4 convincing us that we were wrong. And when we said we were 5 wrong, we didn't really have jurisdiction then or now, 6 because just for the reasons that you gave. We expunged it 7 and the Appeal Board said we were wrong.
8 So your argument is wrong by Appeal Board order.
9 MR. TROUT: Your Honor, I'm sorry if I gave the 10 impression that I was about to make a jurisdictional 11 argument. I was not.
12 I was making an argument about the interpretation 13 of the plain language of the contention, an interpretation 14 which has been consistent from the day that it was admitted 15 up to the present, through the whole incident with the 16 Appeal Board and the Commission on the jurisdictional issue.
17 And that is, that that last sentence of Basis D of 18 MAG EX-19 doesn't say onsite personnel don't know how to 19 forn.ulate PARS . It just does not say that.
20 What it says, and what the contention is and has 21 always been and it has always been understood by the parties 22 and the Board to be, is that for some reason the onsite 23 personnel, having formulated correct PARS, don't know how to 24 communicate that information with the necessary detail and l i
25 guidance to the offsite response organizations.
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23761 1 JUDGE SMITH: But the point that I'm making is
,m 2 that by its terms Contention Exhibit 19 does raise the -- I
( -
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3 mean Exercise Centention 19, Basis D, does raise the 4 question of onsite decisionmaking --
MR. TROUT: Decisionmaking?
5 JUDGE SMITH: -- by its very terms. And this is 6
and now 7 why we believed that we did not have jurisdiction, 8 we realize we were wrong.
9 MR. TROUT: If you take the basis as a whole, Your 10 Honor, I can only read into it two onsite components. One 11 is the allegation that there is something wrong with the 12 METPAC computer in the'way that it accepts outputs 13 concerning offsite conditions.
14 JUDGE SMITH: Of fsite conditions .
l Offsite conditions.
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15 MR. TROUT:
16 The second allegation is that once a PAR is 17 formulated by the onsite personnel, the ERO personnel, that 18 they don't communicate it to the offsite response 19 organizations with sufficient guidance to enable the offsite 20 response organizations to do what it is they need to do with 21 it.
If you look back at our rulings with 22 JUDGE SMITH:
respect to all aspects of it -- onsite, offsite, that is 23 24 yes, you are correct. And I believe you are still correct 25 and would be correct were it not for the Appeal Board.
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1 MR. TROUT: The Appeal Board ruled on 2 jurisdiction, Your Honor, and I don't believe they ruled at 3 all on what the substance of the -- I may be wrong in this, ,
l 4 but they didn't rule as to what the interpretation of the j 5 contention was.
6 JUDGE SMITH: When I said that the Board ruled on l 1'
7 Basis D, it was not focusing on jurisdiction. It was 8 focusing the requirements of 903.
9 Were we to have focused on the jurisdiction, we I
10 would have regarded it as an onsite decisionmaking process l l
)
11 beyond our jurisdiction. But we didn't. We looked at it 12 with a different -- it was a mental lapse.
13 And had we, we would have made the ruling that you l 14 said, but we didn't. We overlooked that aspect of it, and 15 we decided it on the basis of was it a major or a minor 16 defect, and was it readily correctable; not was it onsite or 17 offsite. And I think it is clearly an onsite by its terms.
18 I might say, Mr. Dignan has explained that they 19 repeatedly urged the Board not to accept these kind of 20 contentions. But the advice we got was just not helpful, ,
l 21 because in every instance -- and from the Staff, 22 too -- all there had to be was a mention of onsite activity 23 and it was no jurisdiction, without analysis.
24 And the only analysis that appears in this whole 25 procesc 2 the ~nalysis that we gave in analyzing MAG Heritage Reporting Corporation (202) 628-4888
h' 23763-1 Contention'56,.I believe.- 'That's the only anal.ysis. It's-
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It's never been questioned. It's 1 2 never.been challenged.
never been brought to our attention. 'Nothing. And that was 3
4 an analysis that we~had to make absolutely on'our own' without advice from the parties, with one exception. The 5l 6 NRC Staff did point us to a part of NUREG-0654 which was 7 helpful, but it didn't carry the day.
8 9
10 11 L-l 12 13
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23764 That was a digression. I am curious I 1 JUDGE SMITH:
2 to see how we got to this state of affairs.
3 But D is an onsite contention.
4 MR. TROUT: Yes, Your Honor, I agree.
5 JUDGE SMITH: And it is in over our better 6 judgment and over our ruling, and it's in because it was 7 ordered to be in.
8 MR. TROUT: Your Honor, I'm not moving to strike 9 the contention. I'm simply arguing that the contention has 10 to be understood to say what it in fact says, which is there 11 are two problems. There is something wrong with METPAC --
12 JUDGE SMITH: Right.
13 MR. TROUT: -- because of the offsite condition 14 inputs, and that there is a communication problem between 15 the ERO and the ORO. That is all that the contention says f 16 and nothing any of the parties have said, nothing that this 17 Board has said, nothing the Appeal Board has said has added 18 anything to that contention beyond the words that were there 19 when it was first admitted.
20 And what the testimony that's being offered 21 attempts to do is go beyond that and question the ability of 22 the ERO to formulate PARS.
23 JUDGE SMITH: Okay. It may be that we are faced 24 here with a problem which is not unknown to boards. And 25 that is, we were called upon to make judgments on Heritage Reporting Corporation (202) 628-4888 i
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'l contentions before'we know what the. subject matter is. You-2 ~know, we come up with a contention and then we get evidence N
'3' as'to what the. contention means after the fact.
4 MR. TROUT: Yes.
' 5, JUDGE SMITH: And when we make contentions, we do 6 not know as much'about the factual predicate as the parties.
7 As I stated, I was the only Board member present.
8 I assumed that METPAC was a computer model, which enabled 9 the onsite people -- based upon whatever information, and I 10 don't know what-information, but including meteorological 11 information -- to project offsite doses and to make PARS.
.12. If I'm wrong about that, then we've got to look at 13 it.
MR. TRAFICONTE: You're not wrong about that.
,ns 14 i 15 That's exactly right.
JUDGE SMITH: I didn't know. I just had to infer 16 17 it.
18 As I stated, this is very difficult for the Board 19 to try to look down the evidentiary road without any 20 evidence and try to predict what is in and what is out.
21 And then we go to the question of is it readily 22- correctable. And the only thing that I could think of which 23 would raise the readily correctable aspect of it was 24 training.
25 MR. TROUT: Training to communicate better?
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23766 1 Yes, I agree, Your Honor.
2 JUDGE SMITH: Now that's where you --
3 MR. TROUT: Is that where I'm losing it?
4 JUDGE SMITH: -- you are placing a bridge to a gap 5 which does not exict.
6 MR. TROUT: Well, Your Honor.
7 JUDGE SMITH: Well, wait a minute.
8 MR. TROUT: Okay.
9 JUDGE SMITH: We could have believed, too, that 10 the absence of a readily correctable problem was that the 11 model could not be readily correctable, too.
12 MR. TRAFICONTE: Yes. I was going to add that it 13 could be either or both of those things.
14 JUDGE SMITH: Yes, it could be either/or.
15 Well, the fact is the Board really did not give 16 the parties sufficient guidance, and we have not done our 17 job. And this time I'm including my colleagues.
18 (Laughter) 19 MS. CHAN: Your Honor, as to the question of 20 whether or not you are referring to the correctability of 21 the METPAC model, that model was reviewed by the Staff in an 22 independent inspection report and found to be adequate and 23 appropriate. And this information was produced, I believe, 24 in informal discovery to Mr. Fierce.
25 And so the question of whether or not the METPAC Heritage Reporting Corporation (202) 628-4888 l
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' 1. .model was at fault cannot be litigated. ~So if anything, it 3 l
24 l i 2 has to be another aspect of the contert ion, because it i ,)
3 cannot be the METPAC model.
d 4 MR. TRAFICONTE: Why does that follow?
JUDGE SMITH: I missed that. I missed an -4 5
6 important'part of your logic there.
7 MR. TRAFICONTE: We understand the Staff reviewed 8 METPAC, but why does it follow that'upon review it 9 forecloses litigation over its adequacy?
I mean, Dr. Goble critiques METPAC. He did METPAC 10 11 runs, and he discovered what he believes is a defect in the 12 software. I'm not sure -- I mean, I appreciate what you ,
13 said about staff review, but I'm not sure why it cuts off 14 litigation on the issue.
O
" 15 JUDGE COLE: They did have a contention on that 16 issue, and do have a contention on that issue.
Yes. Don't strike it again.
17 MR. TRAFICONTE:
18 (Laughter) 19 MR. TRAFICONTE: I'm trying not to go back to the 20 Appeal Board.
MR. TROUT: Your Honor, there was not formal 21 22 discovery on this centention.
JUDGE SMITH: Yes.
23 24 MR. TROUT: But as you know, the Interveners did 25 take extensive informal discovery and made informal motions Heritage Reporting Corporation
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23768 I to compel, and there was a lot of colloquy between the -- if 2 there is such a thing as an informal motion to compel, 3 informal discovery.
4 MR. FIERCE: We took an informal deposition in 5 Pittsburgh. We took our coats off.
6 (Laughter.)
7 MR. TROUT: And there was a lot of colloquy 8 between the parties and the Board in February and again in 9 March as to what discovery should be taking place because of 10 the scope of this basis of this contention, 11 And repeatedly the position of Mass AG, the 12 position of the Applicants, the position of the Staff and 13 the position of the Board was in conjunction as to what the 14 words of this contention meant.
15 The jurisdictional fire fight came at the 16 beginning and it came again a week and a half ago. But in 17 between there was a lot of talk about what there words meant 18 and what the scope of the contention was. And it always
! 19 boiled down to the same thing: That we were not litigating 20 the ability of the onsite response organization to formulate 21 PARS except possibly for the one narrow issue of whether 22 METPAC deals properly with offsite inputs.
23 But there was never an allegation that the ERO is
- 1. 24 not properly trained to formulate PARS, and --
25 JUDGE COLE: Given proper information.
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e 23769 1- MR. TROUT: Given proper-information. Exactly 7 ...
'2 right, Your Honor.
3 And so I don't think we need to be concerned about 4 the jurisdictional aspects of it. The Board has 5 . jurisdiction over this basis. The Appeal Board has spoken.
6 JUDGE SMITH: Now, understand, when I am talking 7 about jurisdiction, I'm explaining the reading that at one 8 time or the other in the evolution of this basis -- when I'm 9 talking about jurisdiction, I'm explaining that jurisdiction 10 did not enter into our thinking at the time we looked at D.
11 MR. TROUT: Okay.
JUDGE SMITH: It was a non-element, I believe.
12'
~13 14
'15 l
16 17 18 19 20 21 22 23 24 25 l.
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23770 1 JUDGE SMITH: We looked at it solely under 903.
2 We didn't analyze where the decision was made or whatever it 3 is.
4 Now looking at it we have to take the plain 5 language of it because, for better or worse, it's in.
6 MR. TROUT: Yes, Your Honor.
7 JUDGE SMITH: We have to take the better language 8 of it. What does it mean? And what did the Board's ruling, 9 without taking jurisdiction into account, what did it mean?
10 And I see two aspects of Basis D. I see one 11 aspect is that METPAC doesn't do its job, and that deficit 12 is compounded by the Staff not doing something to catch that 13 problem. Just merely passing it out.
14 MR. TROUT: Yes.
15 JUDGE SMITH: And so we focused on the readily 16 correctable aspects of it.
17 And right now as I sit here, I don't know if our 18 view that it was not readily correctable was predicated upon 19 the model being inadequate or the training being adequate or 20 the combination; I simply don't know.
21 I am not able to give any guidance as to what our 22 thinking was then.
23 Now, I guess what we have to do, as a Board as it 24 is presently constituted, is look at it and decide now, for 25 then, what should be the case.
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23771 1 MR. TRAFICONTE: _Let me just indicate that Dr.
,-~
2 Goble's testimony and at the pages recited here say both 3 things. I mean, at certain points he critiques the METPAC 4 model as having, for example, a unit-directional !
5 -meteorological input.
6 At other locations he critiques the way in which 7 the --
8 JUDGE SMITH: I just occurred to me for the first j 9_ time right now, METPAC is an initialism for meteorological.
10 MR. TRAFICONTE: Yes. I say, yes. I sounds like j
11 that.
12 JUDGE SMITH: Everybody understands that we don't 13 know what METPAC is because we haven't had the testimony 14 yet. s 15 MR. TRAFICONTE: In any event, I was just going to f i 16 point out that the pages referenced on page 4 of their 17 motion, Dr. Goble touches on those various locations, he 18 touches on both aspects. Sometimes he critiques the model.
19 Sometimes he critiques the way in which the ERO personnel I 20 overlie on the outputs of the model and don't modify it or 21 clarify it or frame it in with showing that it may not be 22 completely accurate.
23 I mean, it's a combination. I don't think the 24 testimony is divisible very easily.
25 JUDGE SMITH: 'All right.
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23772 1 They are compounded; the action on it and the.
2 model itself.
3 Now, just one other item I would like to have 4 clarification. Is it the position of the parties that 5 onsite generation of PARS based upon offsite meteorological l 6 data is not an onsite function?
7 Isn't it just another item of information 8 including plant status; onsite fluid readings; 9 meteorological data from the airport or wherever you get it, 10 they all go into the onsite decision-making process?
11 MR. TROUT: Yes, Your Honor.
12 JUDGE SMITH: And even though METPAC uses offsite 13 information it is an onsite aspect of the -- as we have 14 understood the division, it is onsite.
15 MR. TROUT: Yes, Your Honor, i
l 16 MS. CHAN: Yes.
17 MR. TRAFICONTE: Before I agree with that I would 18 just say that the contention and the challenge to METPAC is 19 a challenge to the onsite plan. And a part of the.onsite 20 plan that's connected to offsite -- it's an offsite aspect l 21 of the onsite plan, i.e., the generation of protective 22 action recommendations for people offsite.
23 JUDGE SMITH: Oh, yes.
24 But we have categorically excluded those, and that 25 has been the basic -- no use going back into that.
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23773 l 'l MR.'TRAFICONTE: We've gone through that.
A l ~[f . 2 And I just understand the-Appeal Board has put it
%s l
E 3 back in on those terms.
4 ' JUDGE SMITH: There's no question about it. The 5 "D" is back in.
6 I think the best thing for us to do is, as the 7 Board is presently sitting here, is to make a decision as to 8 what is the fair reading to that, even though it may be that 9 we have destroyed some understanding that you have. It just 10 .happens a good job has not been done.
11 MR. TRAFICONTE: I would just add --
12 JUDGE SMITH: Looking back I can recall wisps of 13 discontent about this'whole process.
14 (Laughter)-
15 JUDGE-SMITH: But we were also very busy on other 16 matters. It's just one of the many wisps of discontent that-17 we were aware of.
18 MR. TRAFICONTE: From our side it was more than a.
19 wisp.
20 (Laughter.)
21 (The Board confers.)
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23774 1 JUDGE SMITH: Okay. The Board has consulted.
2 Again, the standard we used was independent of Dr.
3 Goble's testimony. We put that aside. In fact, thinking we 4 might do that, we deliberately said we're not going to look 5 at Goble's testimony. We are going to read this contention 6 and see if it fairly raises the issue of training.
7 Now by way of background, the only way training 8 could be seen to be in there is if we infer that the f
9 licensing personnel needed more training because they passed 10 on copies of the METPAC printouts. And our reasoning 11 unfolded as follows:
l l 12 There are three possibilities that we infer from 13 this language.
14 One, that we don't know one way or the other, and 15 the language is neutral, whether licensing personnel were 16 correct in passing on copies of the METPAC printout. They l
l 17 may very well have been correct, but the language is 18 neutral. So it may have not demonstrated any error, minor 19 or correctable or whatever, in the plan.
20 Two, assuming that they were incorrect in simply 1
I 21 passing out copies of the METPAC printouts, we cannot 22 determine from the language here whether it was an error 23 inat just happened to happen on a particular day, or rather, 24 it was symptomatic of a basic defect in training. We can't 25 tell. The language is neutral. It could be either.
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23775 1 All right, bearing in mind that is the
]( 2 responsibility of the Interveners to come forward with a 3 contention which is specific and puts the parties on notice 4 as to what they have to defend against, in revisiting this 5 'we see no training aspects to the readily correctable' nature 6 of it.
7 That is not to say that we do not believe that the 8 allegation of a defect in the METPAC computer alleges a 9 significant aspect of the plan which is not readily
'10 correctable. That part of is, we believe, does fairly 11 _ allege it.
.12 And we are making our decision that the METPAC 13 model deficiencies carry the day, but we do not see a 14 training aspect in the last line.
l
( f 15 Any clarification on that?
16 MR. TRAFICONTE: Well, clarification. There is 17 always-that line between clarification and reargument. I 18 don't want to reargue it. I disagree.
19 JUDGE SMITH: All right.
20 MR. TRAFICONTE: I think that the language says 21 that licensee personnel in the EOF merely passed on copies 22 without offering any guidance. I think that runs to the 23 performance of those personnel.
24 But I guess what I would then ask for is -- I 25 understand the Board's ruling. It would be my view that if Heritage Reporting Corporation
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23776 1 we examined -- we may have to examine each of the instances 2 of Dr. Goble's testimony, however, because when Dr. Goble 3 addresses this matter, as I indicated a few minutes ago, in 4 each instance he is talking about METPAC and the way in 5 which the METPAC is used by the personnel who make use of 6 it.
7 So I appreciate what the Board has -- how it's interpreted the language of that contention. The testimony 8
9 that Dr.'Goble has filed addresses the METPAC defects and 10 then sometimes in the next sentence indicates in what way 11 the ERO personnel misuse or don't use adequately or use 12 inappropriately that METPAC output.
13 So we may have to go then through each of the 14 instances to determine what portions -- it seems to me we 15 are going to have to go through each of the instances in 16 this part of Applicants' motion to determine what portions 17 should be stricken based on the ruling.
18 JUDGE SMITH: Well, Mr. Trout's motion undertakes 19 to pinpoint --
20 MR. TRAFICONTE: Well, then I'll have to respond, 21 I'll take each one of the items in succession and indicate 22 where it's actually a critique of the METPAC model.
23 JUDGE SMITH: I guess so, yes.
24 As I say, this is one of the most dreary of all 25 tasks that the Board has faced in this proceeding. So we Heritage Reporting Corporation (202) 628-4888 1 ;
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23777 1 begin with the premise that we do not read -- all right, f3 that was your basis, that was the basis for having training
!,% j) 2 3 in there, and that was Contention EX-19, Basis D.
4 MR. TRAFICONTE: Yes, Your Honor.
5 JUDGE SMITH: You're not offering any other 6 contention at this point to support --
7 MR. TRAFICONTE: To support the --
8 JUDGE SMITH: -- the training aspect of it.
9 MR. TRAFICONTE: The training aspect on page 4. I 10 would like to now go through them in sequence. I believe 11 that basically we believe that Dr. Goble is referencing here 12 EX-19, Basis D.
13 JUDGE SMITH: All right.
14 MR. TRAFICONTE: That's right.
,- se I ) JUDGE SMITH: Okay.
( ,/ 15 16 MR. TRAFICONTE: But I do believe it gets more 17 complicated, so I would like to take each of the references.,
18 JUDGE SMITH: I'm sure that it will, 19 MR. TRAFICONTE: If it can get more.
20 JUDGE SMITH: That's the only direction that we 21 can go.
22 MR. TRAFICONTE: If it can get more complicated.
23 I'm not sure I can handle any more complication.
24 But on page 21 of the testimony, the Applicants 25 have made reference in the second line under " Training of Heritage Reporting Corporation
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23778 1 personnel --
2 JUDGE GMITH: Wait a minute. I have to catch up.
3 I can't find the --
4 MR. TROUT: Your Honor, since we're going to get 5 into this line by line and word by word, could we excuse the l 6 panel for the moment?
l l 7 JUDGE SMITH: Oh, yes, we're not going to get back 1
8 to you today.
9 JUDGE MCCOLLOM: We can excuse Mr. Fierce, too, 10 then.
11 JUDGE SMITH: Well, I think you are excused, too, 12 Mr. Fierce but --
13 MR. FIERCE: I'll listen in. It's entertaining.
14 (The witnesses were thereupon excused.)
l 15 MR. TRAFICONTE: All right. On page 21, in the 16 first sentence there, there is a reference to certain 17 training manuals. The first two of which are training 18 manuals used to train the onsite staff.
19 All right, there is a statement that he has 20 reviewed these training manuals. That's the first step.
21 And then Dr. Goble says that training for PAR decisionmaking 22 does not include preparation for interpreting the impact of 23 wind shifts on decisions.
24 Now, understand that the critique he makes of the 25 METPAC model is its inappropriate handling of meteorological I
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23779 1 information, and as I indicated, the unidirectional way that
.2 it plots wind direction, wind shift.
( )
3 So this is linked, the critique of the model is 4 linked to the statements that he is here making about the 5 training.
6 The dose assessment training material includes 7 basic meteorological information relative to some wind shift 8 mechanisms. Beyond the limited capacities of METPAC, 9 neither the SS ERO, now that's the onsite staff, nor the ORO 10 staff appears to have any training specifically directed to 11 the adaptation of dose assessments to projected changing 12 meteorological conditions.
13 This is a perfect example of what I'm saying. I 14 don't know how you are going to cut this up, because this is
,_ \
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e 15 Dr. Goble looking at the METPAC model and critiquing the way 16 in which it handles meteorological inputs. That's on the 17 previous page, by the way, beginning on page 20.
j 18 The discussion he provides on page 20 runs to the 19 defect in the METPAC model. He then turns to look at the ;
20 way in which the onsite personnel basically handled the 21 METPAC or treat the METPAC and understand the METPAC in And says they are not adequately 22 light of their training.
23 trained to modify the METPAC output in a way that would 24 really --
l 25 JUDGE SMITH: That's right.
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23780 1 MR. TRAFICONTE: -- correct for the problem in the 2 design of the software.
3 Now, you know, to my way of thinking, that is 4 clearly caught by the language in D.
5 JUDGE SMITH: Yes, but you just lost on that.
6 See, now we have to interpret -- see, we just 7 revisited it.
8 MR. TRAFICONTE: I see. Fine.
9 JUDGE SMITH: And we decided that the way we read 10 D does not include the way that he's reading it here.
11 MR. TRAFICONTE: Well, then I would just turn 12 around and say that I think that all we're getting from Dr.
13 Goble here is essentially an exposition of the defects in 14 the METPAC model.
15 JUDGE SMITH: Right. Exactly.
16 MR. TRAFICONTE: That would be another way of 17 describing --
18 JUDGE SMITH: That's all that survives from 19-D.
19 MR. TRAFICONTE: I understand.
20 Then I would characterize the testimony that I was 21 just outlining on pages 21 up to the top of page 22 as an 22 exposition by Dr. Goble of the defects in the METPAC model.
23 It's so intimately linked to his discussion of the way in 24 which the software presents meteorological information that j 1
25 I can't see how you are going to say -- I I
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' l- JUDGE SMITH: -Well, what you are arguing, I think,
. . ,- g
!- 2 is subtly different, but it is different, and that he's 3 saying that the METPAC model is deficient and deficiency has 4- nothing to interrupt it.
5 MR. TRAFICONTE: To correct it.
6 JUDGE SMITH: To interrupt it.
7 MR. TRAFICONTE: Yes.
8 JUDGE SMITH: It goes on to fruition --
9 MR. TRAFICONTE: Yes, yes.
' 10 JUDGE SMITH: -- because no one is trained to stop 11 it.
12 MR.'TRAFICONTE: Well, he doesn't -- I mean if the 13 phrase " training of personnel" taints the testimony, we will 14 withdraw the heading. But the point is I can't see how
.p
.t
( - 15 there is anything wrong with Dr. Goble discussing the 16 process as a.whole and saying, yes, as the METPAC model is 17 handled by these personnel, they don't do anything to modify 18 or correct for its inherent error.
19 (The Board confers.)
20 JUDGE SMITH: If the METPAC model is found in this 21 litigation to be deficient and not readily correctable, the d
22 training becomes irrelevant.
23 If it is found to be accurate and reliable, the 24 training is irrelevant. The training is irrelevant.
25 JUDGE MCCOLLOM: In fact, it appears as if Dr.
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1 Goble, and this is with a very brief looking at it, suggests j 2 that you might train to correct the deficiency in the METPAC 3 model. l l
4 MR. TRAFICONTE: And then he -- yes. I 5 JUDGE MCCOLLOM: So in looking at the METPAC model g 6 first and then it will generate something if it is found to 7 be defective, and that defectiveness will be eliminated, 8 whether it's by training or whether it's by changing the 9 model or whatever, if that is what comes out.
10 MR. TRAFICONTE: I think that is exactly what he 11 is saying. What I think he is indicating is that there is 12 correction in the knowledge base of these onsite personnel.
13 There is no built-in correction for the deficiencies in the 14 model. That's how I interpret --
15 JUDGE SMITH: There is no external correction, i 16 MR. TRAFICONTE: In other words, they are not 17 trained --
18 JUDGE SMITH: Right.
19 MR. TRAFICONTE: -- in the way in which the model 20 may have deformations. They are not instructed that they 21 are supposed to somehow use a slightly different --
22 JUDGE SMITH: Right.
23 MR. TRAFICONTE: Yes.
24 JUDGE SMITH: But that is the aspect of the 25 contention on this view of it that we have said was not Beritage Reporting Corporation (202) 628-4888 i
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.j 23783 l fairly raised by.the contention.
{ 2 Furthermore, we are saying that the METPAC model
(),. 3 deficiencies can stand or fall on their own without regard
- 4. to training. I mean, if it is deficient, we don't_want a 5 deficient model in there that somebody has to be trained to 6 pick up.
7 MR. TRAFICONTE: All right. i 8 JUDGE SMITH: If it is not deficient, then there 9 is no training necessary.
10 MR. TRAFICONTE: All right. Well, I do agree that 11 the pointoof these sentences was to rebut the notion that 12 the personnel were adequately trained and able to make the l 13 translation from the model to --
14 JUDGE SMITH: Well, having succeeded in blocking
/
( ,T/ 15 that out of the contention, I don't think that they would 16 _try to address it that way. I don't know.
17 If that's the case, no problem. Then you can put .
?
18 it in as rebuttal, surrebuttal. !
1 19 Is that right? l l
20 I mean, we are not going to get a case here that i f
21 says METPAC may be a little bit shaky, but we have our
^
22 people trained, well trained to take these shakiness out.
23 In that event, that's the same thing. The issue would be I
24 reintroduced in the same ruling we made before, that you i
25 never get a free shot.
l Heritage Reporting Corporation
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23784 1 MR. TROUT: Especially.
2 JUDGE SMITH: Yes.
3 MR. TROUT: I agree, Your Honor.
4 MR. TRAFICONTE: Well, he may agree. I have their 5 testimony in front of me, and they do say something very l 6 close to this. That is to say, they do say that the i
7 personnel are able to make use of the model notwithstanding 8 its inherent limitations because of the way in which the 9 personnel understand PAR formulation.
10 MR. TROUT: Haven't offered it yet.
11 MR. TRAFICONTE: So the next step --
12 JUDGE SMITH: You are right. It's a good thing 13 you stuck by it, because this does get recordbreaking 14 complication. Every time we think we see a solution --
15 MR. TRAFICONTE: Well, I just mean --
16 JUDGE SMITH: All right. I know, you are right.
17 MR. TRAFICONTE: Maybe the answer is strike this, 18 and then, you know, next week when their panel is on, I'll 19 move and we will remember this, and you will strike that.
20 JUDGE SMITH: So where we are now, their testimony 21 says METPAC has its limitations. But training teaches the 22 staff to use it as a reliable tool, but only as a tool and 23 then we're going back to the allegation originally in the 24 contention. But they don't do that.
25 MR. TRAFICONTE: They don't do that. That's Beritage Reporting Corporation (202) 628-4888 {
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1 l
23785 1- exactly --
r- ~1
) 2 JUDGE SMITH: They said that without --
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f' 3 MR. TRAFICONTE: That's exactly where we are.
4 MS. CHAN: Well, Your Honor.--
5 MR. TRAFICONTE: That's why the sentence that says 6 they take the METPAC printout and they hand it to the-7- offsite -- I'm sorry, did I interrupt you, Elaine? I'm 8 sorry.
9 MS. CHAN: I just wanted to mention that since the 10 Board has interpreted what the contention is and what is the 11 problem, I think that both the Applicant and the Staff are 12 going to go back to their testimony and review it.
13 So I don't think there is any purpose in bringing 14 up --
,( 15 MR. TROUT: I think that's a very real 16 possibility.
17 MR. TRAFICONTE: Well, it may be.
18 MS. CHAN: -- bringing that up at thic point. Why 19' don't you wait until it's offered, because I think the 20 Board's interpretation --
21 MR. TRAFICONTE: Well, I think what we have -- I'm 22 sorry.
23 MS. CHAN: -- of what we are litigating makes a 24 difference in what our testimony says.
25 MR. TRAFICONTE: Because I think what we are Heritage Reporting Corporation f
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23786 1 talking about here is the parties obviously understood that 2 the issue was on the table and we formulated testimony in 3 that regard.
4 JUDGE SMITH: I might point out that we made our 5 ruling on the contention in the same light that we would 6 have made the ruling had we -- we did not look at the 7 testimony.
8 MR. TRAFICONTE: Yes, I understand that.
9 JUDGE SMITH: We are making it in a void, just the 10 way we think it should be interpreted.
11 MR. TRAFICONTE: Well, the only point I would want 12 to make in that regard is I appreciate what the Board is 13 doing. I also appreciate it's been reconstituted.
14 The problem for the parties, at least , is that 15 we've had five intervening months of work on the contention, 16 work by an expert with METPAC discovery. I mean there is 17 water under the bridge to an extent, and I think that the 18 Applicants' and the Staff's testimony on METPAC -
19 JUDGE SMITH: Well, certainly we are going to have 20 this situation here. And that is, Dr. Gehle is going to be 21 here tomorrow, and I think that perhaps until you can 22 resolve the matter, at least we ought to preserve his 23 testimony on the issue. And that is, by cross-examining.
24 And then put that aside, see if it belongs in or out of the 25 case.
Heritage Reporting Corporation (202) 628-4888
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-E 23787
. 1. But the way Mr. Traficonte has taken us down this
- A road that you have come.up with rebuttal testimony---
, ( )' 2-Q/
3 MR. TROUT: Well, Your Honor,.we would have-been 4 remiss.having seen his --
5 JUDGE SMITH: All right. Yes.
6 MR. TROUT: -- prefiled testimony if we hadn't 7 responded to it.
[
8 JUDGE SMITH: Exactly. Right.
9 But now he's in the position where -- you did 10 exactly right. - You had to prepare for the Board's ruling 11 for the contention. But now we are in a situation where he 12 is facing testimony where training makes up for the 13 limitations, going right back to their argument for the 14 language of that original contention.
- ', 15 MR. TROUT: Your Honor, I just don't follow that, 16 because the testimony -- Applicants' testimony hasn't been 17 offered.
18 JUDGE COLE: Yet.
19 JUDGE SMITH: Right.
20 MR. TROUT: That's right.
21 JUDGE SMITH: Well, I understand tha., and it may But now we leaped to the point where we are
- 22 not be offered.
23 not going to allow Dr. Goble to testify in the manner argued 24 right now in support of the contention.
l 25 But then I pointed out that it might be useful on l
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23788 )
1 rebuttal if the testimony is offered that assumes that it i
2 could be used as rebuttal. And he quite correctly picks up 3 -- I mean surrebuttal -- and he quite correctly picks up a 4 part of your testimony as to which he is r.ow expecting to be !
I 5 offered as to which Dr. Goble's testimony would rebut.
6 If it's not going to be offered, we've got 7 something else.
8 So my proposal is Dr. Goble is going to be here 9 ready to testify. We preserve that aspect of his testimony, 10 carve it out, see what the cross-examination brings, see 11 what it is. And then when the parties determine how they 12 wish to react to the Board's revised ruling, we can either 13 say leave it out or bring it in.
14 Now maybe that's too complicated. I don't know.
15 This is the Board's revenge.
16 (Laughter.)
17 18 19 20 21 22 23 24 25 ,
i I
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MR. TROUT: Am I still paying for Dillman, Your (y'j :2 Honor.
3 JUDGE SMITH: What?
4 MR. TROUT: Am I still paying for Dillman.
5 (Laughte7) 6 -MR. TROUT: Your Honor, let me make an alternative 7 proposal which I think accomplishes.the result that the 8 Board intends.
i 9 The procedure we have established in this case is 10 that, if testimony is excluded on the basis for a motion in 11 limine it is not excised from the record; it is rather 12 struck'over and kept in the record.
13- So that for many reasons, one of which being that
,-~
, 14 everyone has their offers of proofs in the record to take up i
\ 15 on appeal and the like.
16 If we follow that procedure, our standard 17 procedure in this case, and Applicants then, following Dr.
18 Goble's testimony, offer a piece of testimony which does 19 fairly itself raise the issue of training as an anodyne to 20 some defect in METPAC; then we just --
21 JUDGE SMITH: That's fine.
22 MR. TROUT: -- delete the slashes.
23 JUDGE SMITH: Except for one thing, though. .
24 MR. TROUT: The reason that I'm uncomfortable, 25 Your Honor, with the alternative you propose, and this is Beritage Reporting Corporation
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23790 1 the principal reason, is that if the testimony is left in 2 now, Applicants will cross on it. And if Applicants cross 3 on it, it's in.
4 JUDGE SMITH: No, that's not-my proposal.
5 MR. TROUT: Okay.
Your proposal is all right. It 6 JUDGE SMITH:
7 would be fine except that if your decision is to leave the 8 testimony in, then you will have to presumably bring Dr.
9 Goble back to cross-examine him on this issue.
10 MR. TROUT: We could do that.
11 OUDGE SMITH: You could do that.
12 MR. TROUT: Or Applicants could just swallow hard 13 and let the testimony go in without having crossed on it.
14 It would be a situation then of our own making.
15 If I understand the scenario, wc would --
16 JUDGE SMITH: Oh, I see.
17 If you are willing to accept that scenario there's 18 no problem. I was only going to suggest that if the issue, 19 as it presently is casted, and your testimony survives.
20 MR. TROUT: Yes.
21 JUDGE SMITH: I would have expected that you would 22 like to have cross-examined Dr. Goble on that aspect of it.
23 MR. TROUT: Right.
24 JUDGE SMITH: Your plan does not give you that 25 opportunity. I was simply suggesting that along with the Heritage Reporting Corporation (202) 628-4883
23791 1 stricken part of Goble's testimony is the cross-examination
,/ \
i 2 that you would make were you not to have -- if the issue
( ~
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3 survives. And that whole package be put aside.
4 MR. TROUT: I understand.
5 JUDGE SMITH: The stricken part and the cross-6 examination of it, so that it is available conveniently now 7 for future use.
8 But if you're willing to take your chances on 9 having Goble's testimony go in without cross-examination, if 10 the issue survives, that's fine. That's cleaner yet.
11 In any event, can we put it aside while you ponder 12 these? This is very complicated. I really do regret the 13 confusion.
14 MR. LEWALD: We're going to end up with three 7-
/ 1
!. / 15 separate records, Your Honor.
RJ 16 JUDGE SMITH: Well, that's right. And I'm sorry, 17 it's complicated. I'm sorry. It just can't to endone, i
18 MS. CHAN: The Staff votes for crossing it and 19 possibly deleting it later.
20 JUDGE SMITH: As a discreet package set aside, 21 marked at the beginning, marked at the end. More or less 22 like a deposition.
23 It gets very complicated because once down the 24 road you forget and it is very complicated.
25 Why don't we come back to it tomorrow.
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i' 23792 1 IGL TROUT: I think that makes sense, Your Honor.
2 Yes, I agree.
3 JUDGE SMITH: Okay.
4 MR. TROUT: Do we want to continue to go through 5 this line-by-line?
6 MR. TRAFICONTE: Who was that question addressed 7 to? Shall we take a vote, Jeffrey?
8 MR. TROUT: Anyone who will answer, no.
9 MR. TRAFICONTE: Why don't we -- I'm just thinking 10 about the whole process here being an effort to expedite, 11 and I'm thinking that we started at 3:30 and I hope we can 12 get this done.
13 JUDGE SMITH: How about the FEMA performance?
14 MR. TRAFICONTE: All right.
15 Let me just push on and we'll leave all of 4 that 16 we just dealt with aside.
17 JUDGE SMITH: Yes.
18 MR. TRAFICONTE: And perhaps we can get through 19 the motion today.
20 The testimony as to the FEMA review process which 21 is pages 4 to 5 of the motion, there appears to be one 22 instance of this on page 17, and this is question and answer 23 to 12.
24 I'm not sure exactly -- to put it in one phrase, 25 I'm not sure why Dr. Goble could not offer some form of Heritage Reporting Corporation (202) 628-4888
23793-4 IL rebuttal to the FEMA' presumption, as to the specific u
- ,m)a 2. contention that he is testifying to.
l.. ]d 3 I guess I just don't see.why. I grant that there
'4 is no general contention challenging FEMA's performance.
- 5. But this .isn't the general critique . of FEMA's performance; 6' this is a very specific critique of the way in which Dr.
i; - 7 Goble understands FEMA approached its job vis-a-vis these 8 . issues.
9 So I understand this testimony to be under the 10 rubric of rebut the presumption.
< 11 JUDGE SMITH: .This is the one that Ms. McPheters 12 is very interested in, too.
13- MR. TRAFICONTE: Yes.
14 MS, McPHETERS: Yes, that's quite right, Your
'ni 15 Honor.
16 MR. TRAFICONTE: And I would say, if the Board:
17 rules and leaves it in,.we would then perhaps right now 18 address the FEMA motion as well.
19- (Pause to review document. )
20 JUDGE SMITH: You are saying this is not a 21 criticism of the FEMA review, but this is actually a 4
22 criticism of the scope?
23 MR. TRAFICONTE: If the Board would recall, we had 24 a very lengthy -- when Mr. Donovan was on the stand we had a 25 lengthy colloquy about the way in which the Interveners l
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i 23794 1 could attack the FEMA presumption. And it got off on the 2 distinction between the general attack on the way in which 3 they reviewed the exercise.
4 And the Board had mado the point that we didn't !
5 get a contention admitted that had that general scope.
6 I was trying to argue that, in fact, as long as we 7 focused the critique of FEMA on specific contentions and 8 issues that are being litigated, it would be perfectly 9 appropriate in the form of rebuttal of the FEMA presumption 10 to challenge the way in which FEMA took a position on each 11 issue.
12 JUDGE SMITH: Yes, but what do yoa say about our 13 ruling on page 22.
14 MR. TRAFICONTE: That ruling, without having the 15 document in front of me, I'm sure that that was your ruling 16 on exercise contention either 6 or 7 where you ruled out of 17 court the general contention. ,
18 MR. TROUT: It's a basis of contention 2. And I l 19 believe the basis was that FEMA didn't interview school 20 teachers or something like that. It was not the general j 21 contention at all.
22 JUDGE SMITH: It is not what happened in the f exercise; it is how FEMA handled it. j 23 And we alluded to 24 language to the Appeal Board in ALAB-900 which I wish had i
25 right now to read again, as compared to the realities of the l Seritage Reporting Corporation I (202) 628-4888 l
23795 3 1 exercise and what actually happened.
.O But I read the paragraph here on page 17.
) 2 3 (Pause tc review document. ) .
4 JUDGE SMITH: It seems to me that you are going 5 beyond FEMA review into -- well, you do have the evaluation 6 by FEMA, I don't know.
MR. TRAFICONTE: Well, again, in the form of a 7
8 stipulation, if that would move things forward. We don't 9 intend with this testimony to do anything other than to 10 rebut the presumption that attaches to' FEMA's findings 11 vis-a-vis exercise objective 11, I believe, that appropriate 12 -- they made a finding that appropriate protective. action 13 recommendations were made. We have to rebut that.
14 JUDGE SMITH. But see, it is not the review, but l
(_) 15 you are criticizing that the exercise deficiencies were 16 measured directly against the plan, with the assumption that 17 the plan was correct. And that there should have been an 18 independent assessment of-the adequacy of the PARS.
19 And so it wasn't the quality of the review; it was 20 really the scope of the review.
21 MR. TRAFICONTE: Scope of the review.
22 JUDGE SMITH: Not the scope of the review.
23 However, it was reviewed, but the scope of the manifestation 24 of the PARS, of the corrective action.
25 If the PARS were measured against the wrong Heritage Reporting Corporation l
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l 23796 1 standard in the exercise, FEMA's review of it, it would seem i 2 to me, is not relevant. Or it may be relevant but is not 3 controlling, you know, if it was against the wrong standard 4 and the exercise was defective as compared to the review of.
5 the exercise. That is what I read from the criticism of 6 Keller.
7 But then, however, they go on to criticize Keller 8 or staff failing to attempt to evaluate the decisions. Now 9 that's a different matter. That seems to be saying. even if 10 correctly made the PARS, they didn't evaluate them 11 adequately as compared to having the PARS judged against the 12 wrong standard.
13 MR. TRAFICONTE: Let me do it this way: let me 1
14 basically tell you what this is intended to do; and then you 15 can rule one way or the other.
16 JUDGE SMITH: You mean we're wearing you down.
17 MR. TRAFICONTE: Definitely. I will confess --
18 JUDGE SMITH: It has never happened before.
19 MR. TRAFICONTE: -
you are wearing me down.
20 (Laughter.)
21 Let me just tell you what the purpose or intent of 22 this language is and then you can rule it either in or out.
23 Dr. Goble reviewed the exercise report focusing on 24 those parts of the FEMA review that dealt with the 25 appropriateness of the protective action recommendations Heritage Reporting Corporation (202) 628-4888
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-23797 1 actually made during the exercise. He read the exercise
}""~) 2 report.
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3 He was handed Joseph Keller's deposition and he 4 read all the major parts'of that deposition, where I at 5 Keller's deposition asked him questions about the nature of 6 the FEMA evaluation of the adequacy of protective action 7 recommendations.
8 So Dr. Goble had read the FEMA report finding the 9 protective action recommendations adequate. And he read the 10 Keller deposition. l 11 Dr. Goble came to the conclusion that FEMA was asking the wrong question. Instead of judging the adequacy 12 13 of the protective action recommendations made during the 14 exercise against a standard of what would have been the l
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16 that the decision-maker found himself in, instead, Dr. Goble 17 came to the conclusion that FEMA was simply asking itself, 18 did this protective action recommendation, is it in 19 accordance with what the plans says a possible protective 20 action recommendation could be.
21 So that FEMA was caught in a circularity because 22 they did a plan review and postponed to the exercise the 23 appropriateness of the PARS. And then they did an exercise 24- review judging the appropriateness of the FARs simply ]
)
25 against what the plan says. That's all this is.
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23798 1 Now, frankly, at this point in the day I'm not 2 sure whether that keeps it in or keeps it out. But let 3 there be no ambiguity. That's what he says here. And we're 4 prepared to accept any charge made.
5 I Trankly think that -- just to finish up, I think 6 that rebuts the presumption that attaches to the FEMA 7 finding, that's why it is here. ;
8 JUDGE SMITH: So what the Appeal Board said in 9 ALAB-900 is that, a question of fairness of penalizing a 10 license applicant -- well, it was in the context of FEMA's 11 failure to evaluate the number of ambulances and drivers 12 actually available and interview ambulance company officials i 13 concerning their knowledge of their emergency response duties." i 14 15 And then the Appeal Board went on to say: "It is 16 not clear whether these omissions were solely the 17 consequence of LILCO's actions or FEMA's. "
18 In essence, if it was a shortcoming of the 19 exercise, well then you're in trouble. If it was a 20 shortcoming and the exercise is all right, but FEMA's 21 evaluation was inadequate, then you don't stick the 22 applicant with that. And that was our reasoning on page 22 23 and 23 of our memorandum.
24 So now I think where we are on this is that, you 25 are criticizing FEMA's evaluation and not the plan itself.
f.
Heritage Reporting Corporation (202) 628-4888
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23799 1 And I think that you're out based upon the reasoning that we 2 used back in our memorandum where we were receiving -- now, J
3 you're arguing, well, how can you attack rebuttal 4 presumption if you don't attack the essence of it.
5 Well, the rebuttal presumption was before the 6 Appeal Board, too. That's all I got to say. There's 7 problems there.
8 MR. TRAFICONTE: It is late in the day. I just 9 want to --
10 JUDGE SMITH: Mr. Traficonte, I want to share with 11 you the feeling that the law is not as clear on this point 12 as it might be.
13 MR. TRAFICONTE: Okay.
14 Let me just say about this paragraph: it is not f~%
( ) 15 intended to criticize the way FEMA structured the exercise.
G' 16 It is not an effort in any fashion to say that FEMA should 17 have done something or some portion of the exercise was a
18 omitted. It's not a critique of the exercise or the conduct 19 of the exercise or the structure of the exercise.
20 It's an effort to rebut the finding that has 21 rebuttal presumptive weight, the finding that FEMA made that 22 the appropriate protective action recommendations were 23 generated. We have a contention that challenges that.
24 And this portion of Dr. Goble's testimony --
25 JUDGE SMITH: But don't forget, it has to be a f- x Heritage Reporting Corporation (202) 628-4888 (o) n
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P 23800 {
i 1- defect in the plan as revealed by the exercise. i 2 MR. TRAFICONTE: The contention being challenged 3 is that there was exactly that. That the protective action 4 recommendations that were generated were not the right ones.
5 They weren't the appropriate ones in light of the 6 cir cumst ances .
7 JUDGE SMITH: They weren't the appropriate ones as 8 provided by the plan or as provided by independent 9 assessments.
10 MR. TRAFICONTE: This revealed -- that's a good 11 point.
12 JUDGE SMITH: Well, that's the controlling point.
13 MR. TRAFICONTE: Dr. Goble's view is that the 14 exercise revealed a fundamental flaw in the plan's decision-15 making criteria.
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.1~ MR. TRAFICONTE: Because, the exercise. forced the 2 : plan to r generate ' prot 9rtive action recommendations. ' They.
3- :were made, and .IHe . Goble hks gone back and-assessed.the 14 appropriateness of those:nrotective action recommendations 5, by. going back and looking at.the position of the decision .
6 maker, all the variables available, and did they make the 7 right recommendation.
8 JUDGE SMITH: Then he doesn't have to fault Keller 9 for~notJ1ooking to external standards.or looking to the 10: ' plan. He doesn't have to fault Keller for doing that.
11 He can just say whatever it is,.the exercise 12 revealed that the plan had a fundamental flaw.
13 MR. TRAFICONTE: Had a fundamental flaw in it.
14 JUDGE SMITH: He doesn't have to go through Keller 15 to do that;.and that's what he has done in that paragraph.
MR. TRAFICONTE: And he has done it only for one 16 17 reason, which is if no rebuttal presumption is attached,-the
'18 paragraph wouldn' t be there.
19 JUDGE SMITH: I don't know how to handle that.
MR. TRAFICONTE: That's why it is there.
20 21 I understand it would be irrelevant otherwise.
one with you. If nothing attached to FEMA's finding, 22 I'm at 23 this would be irrelevant. I agree with that.
24 The only reason why it's here and the only reason 25 why it's relevant is that we feel that we must make an Heritage Reporting Corporation
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23802 1 effort to rebut the presumption of adequacy that attaches to 2 their finding on the very issue that Dr. Goble's other 3 testimony runs to.
4 JUDGE SMITH: You will be just as free to rebut 5 FEMA's finding if you demonstrate that FEMA's approval of 6 the plan was wrong and the exercise has demonstrated. And i 7 that is the best rebuttal you can have. And that is, the 8 actual substance of the facts do not support the finding.
9 MR. BACEMANN: Your Honor, may I say something 10 about this. It appears they are attacking FEMA's measuring 11 stick. FEMA says, we're going to measure you a certain way.
12 The Applicant did it. They didn't find a deficiency.
13 They are saying, FEMA should have measured it in a 14 different way and they would have found a deficiency. If 15 that doesn't go to the way FEMA conducts its evaluation 16 process, I don't know what is. I can't see them going at 17 all. They're just saying, FEMA measured them wrong; they 18 should have measured them a different way. And that's going 19 to FEMA's procedures.
20 MR. TRAFICONTE: Well, procedures, that's a key 21 term. I put Mr. Donovan on the stand and I cross-examined 22 him, for example, as to the survey of the handicapped. And 23 this is another example of the same kind of thing.
24 MR. BACHMANN: Well, I suggest you should have 25 cross-examined him on how they measure the PARS at the time Heritage Reporting Corporation (202) 628-4888 l
23803 1 and you might have a better foundation for keeping this in.
[t l
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2 NR. TRAFICONTE: That's what this challenges, the 3 way they measured the appropriateness of the PARS.
4 MR. BACHMANN: But you had the opportunity to i
5 cross Donovan on that and you didn't. ;
6 MR., TRAFICONTE: If Mr. Bachmann is just i
7 indicating to me that we're rebutting in a different way, 8 yes. Instead of cross-examining Mr. Donovan in this regard, 9 Dr. Goble has reviewed the deposition testimony of Keller, 10 who is a FEMA contractor, and he's come to a conclusion 11 rightly or wrongly that this is what FEMA did.
12 I'm not duty-bound to cross-examine Mr. Donovan on j 13 everything.
I 14 MR. TROUT: Your Honor.
,a MR. TRAFICONTE: Although I made a fair effort to (v) 15 But I'm not limited in the way I try to rebut FEMA.
16 do it.
17 MR. TROUT: Your Honor, I think that you have 18 already put your finger on the key point here which is that, 19 an argument on the merits that the PARS were wrong is 20 exactly how the Interveners go about rebutting the 21 presumption. And that is not what they do in this 22 paragraph. They don't argue that the PARS were wrong. They i
l 23 argue that FEMA's review process was not the review process 24 that the Interveners would like to see as a review process; 25 and that's irrelevant. It's just a gratuitous attack on i Heritage Reporting Corporation
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23804 1 FEMA.
2 It doesn't rebut the presumption and it couldn't 3 rebut the presumption. And so it's irrelevant. 3 4 MR. TRAFICONTE: I just simply do not understand 5 that position. And I, . frankly, cannot see how that can be 6 offered in good faith.
7 The fact of the matter is, there is a contention.
8 MR. TROUT: John, it's late in the day, but you 9 didn't mean that, I presume.
10 MR. TRAF1 CONTE: The contention says that you did 11 not make -- the Applicants did not make the appropriate 12 protective action recommendations; that's step one.
13 Step two: you're making out a prima facie case in 14 here that you did because FEMA says you did; that's step 15 two.
16 Step three: we have to rebut. We rebut in two 17 ways: we offer Dr. Goble's testimony on the merits of the 18 contention. He says, they didn't make the right protective 19 action recommendations in light of the circumstances.
20 We rebut in another way which is, well, gee, if 21 they' re going to hang their hat on the FEMA nail, we're here 22 to tell you that FEMA is asking itself a completely 23 different question. FEMA is simply comparing the protective 24 action recommendations that came out of the machine by
( 25 whatever the input that goes into the machine.
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l L _. _ - _. _. _ ___ _ - _ _ . _ - _ _ - - - _-_____-____-_-__-__--_.__-___]
_ - _ _ _ - _ . V 23805 1 And the old adage, " garbage in, garbage out". If y
2 the plans protective action recommendations are not lJ 3 adequate,, it will produce inadequate protective action 4 recommendations and FEMA won't see that, because FEMA 5 compares what happened at the exercise against what the plan 6 said and not look ht what the protective action --
7 JUDGE SMITH: Well, can't you leave FEMA out of 8 it?
9 MR. TRAFICONTE: Sure. i 10 JUDGE SMITH: And can't you say that the plan 11 produces inadequate PARS, and the exercise reveals -- !
12 MR. TRAFICONTE: We would be more than happy to 13 leave FEMA out. The problem is, the case comes to the Board 14 and we are facing a prima facie case made out on the basis l
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16 I would be the first person. I would be in the 17 front of the line if FEMA --
18 JUDGE SMITH: But you can point out that FEMA's 19 finding is inadequate.
20 MR. TRAFICONTE: That's what Dr. Goble did base on 21 -- and this is the reason why Dr. Goble --
22 MR. TROUT: That could never be a legally 23 sufficient reason.
24 MR. FIERCE: Sure it is.
25 Absolutely.
r"'N Heritage Reporting Corporation (202) 628-4888 (J)
23806 1 MR. TROUT: We've had this -- Your Honor, we've 2 gone through this both times Mr. Donovan was on the stand.
3 I think we went through it in more detail the first time Mr. {
4 Donovan was on the stand.
J 5 The Interveners can only rebut the presumption. i 6 They can only carry the day with positive evidence, 7 independent evidence. They can't rebut the presumption by 8 attacking the review process.
9 MR. FIERCE: It seems like it was a different shoe 10 here when Mr. Thomas was on the stand and the Applicants 11 wanted to find out about the review process in great detail 12 in order to undermine the position that FEMA had taken and 13 spoken by Mr. Thomas.
14 The process that they go about in arriving at 15 their conclusion that something is adequate or inadequate 16 was right then; why not now?
17 MR. TRAFICONTE: You know it's late in the day 18 when Mr. Thomas' name comes up.
19 (Laughter) 20 MR. FIERCE: I had to grope back quite a long way 21 to think of something where FEMA was on our side.
22 (The Board confers.)
23 24 25 Heritage Reporting Corporation <
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23807 1 MR. FIERCE: Your-Honor, excuse me.
l,-<) 2 I have to leave'to catch a train.
?%)
3 We are starting at 8:30 tomorrow morning?
4- JUDGE SMITH: Yes.
J 5 Okay, our view is that this testimony that we look 6 at is that'the witness is saying that the exercise revealed 7 a fundamental. flaw in the method of PAR decisionmaking, and 8 that FEMA's review failed to find that fundamental flaw.
9- But the' fundamental flaw underlying exists as compared to i
l 10 the situation alluded to by the Appeal Board in ALAB-900 11 where no fundamental flaw exists. But FEMA's evaluation was
, 12 a challenge. That's the distinction we make here.
13 'The essence of it is that the underlying-problem-
.14 is that the plan demonstrated a failure in the PAR q
./
decisionmaking process. . And FEMA's finding to the contrary 'l 4 15 s -
16 is not to be accepted, and their evaluation of the wrong 17 standard takes away their-rebuttable presumption. i 18 It's in that sense that we leave that in.- And it -
19 is in that sense that we distinguish between that and our 20 ruling on citing ALAB-900.
21 Now in earlier instances where FEMA's evaluation 22 was faulted, it was in the context of the evaluation itself 23 as compared to what it is that they are evaluating.
1 In this instance, we read the testimony to be that l 24 25- the. exercise exercised the wrong PARS because the plan
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i 23808 1 apparently provided -- of course, we don't know this. All 2 we are reading is this one paragraph. We think that that's ,
3 what he is saying and that's the way it should be 4 interpreted.
5 So in that respect, maybe the paragraph will have 6 to be cleaned up. I don't know. But the underlying thought 7 behind the paragraph would be acceptable. There may be 8 language in here -- it is late. There may be language in 9 here that should not survive, and we can address that later.
10 But the fundamental idea that the exercise demonstrated a.
11 fundamental flaw in the PAR-generation process, if that's 12 the case, is appropriately a part of his testimony.
13 FEMA's approval of it is therefore act entitled to 14 rebuttal presumption, or is rebutted by those underlying 15 facts -- it doesn't matter, it all comes out the same --
16 is also an issue.
17 MR. TRAFICONTE: Before we -- I' m sorry , are you 18 going to reargue that?
19 MR. TROUT: No, I am not going to reargue.
20 I just wanted to make sure that I understand the 21 Board's ruling. The paragraph that we're arguing about is 22 of relatively small moment. I just want to make sure that 23 my understanding of how the rebuttable presumption works 24 remains the same.
25 This paragraph does two -- the Board reads this Heritage Reporting Corporation (202) 628-4888 l
23809 l- paragraph as doing two things. The Board reads this
[
( 2 paragraph as alleging a flaw, and also explaining why' FEMA 3 didn't see the flaw. And it rebuts -- it could rebut the
'4- presumption because it does both things. If it-only did the 5 second, it could not rebut the presumption.
6 It's the case of the incredible shrinking 7 presumption. As long as there is no positive evidence, the 8 first element, the presumption is still there.
JUDGE SMITH: All right, Mr. Trout. Don't push 9
10 the Board too hard --
11 MR. TROUT: I'm sorry.
12 JUDGE SMITH: -- on this, because -- I mean your I' 13 approach is respectful and everything. But you are in an 14 area where I don't think that the Commission precedence is
'- 15 as good as it could be, gives as much guidance as it could 16 be. And I think what we have here in this litigation right 17 here is pretty much first impression.
18 It is very hard for me,.it's almost a mythical 19 concept, is when a rebuttable presumption vanishes and when 20 it doesn't.
21 (Laughter.)
L- In the last analysis is when there is a rebuttal 22 23 to it, then we have to decide the matter on the merits of
^
24 the facts.
25 MR. TROUT: Yes.
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23810 l JUDGE SMITH: And how we get there in this 2 -instance, let's leave it alone for right now. Because you 3 are asking for a declaratory ruling down the line.
4 MR. TROUT: No, Your Honor. I withdraw my 5 remarks.
6 MS. McPHETERS: Your Honor, in light of your 7 ruling which we have absolutely no problems with, but it 8 certainly heightens the importance to FEMA of our motion to 9 supplement the record.
10 JUDGE SMITH: Right.
11 MS. McPHETERS: The characterization indeed by all 12 the parties in the argument before the Court about Mr.
13 Keller's testimony, FEMA fundamentally disagrees with it.
14 JUDGE SMITH: I know you do.
15 MS. McPHETERS: That is not what Mr. Keller and 16 FEMA did in the exercise. Quite the contrary.
17 JUDGE SMITH: I've "gotcha". Right. And we 18 understand, we understand that for the record to be complete l
19 that the balance of Mr. Keller's testimony should be in.
20 MS. McPHETERS: Great.
21 JUDGE SMITH: Well, wait a minute.
22 See, that was --
23 MR. TRAFICONTE: I said that.
24 JUDGE SMITH: See, he had already offered that to 25 you, but you want a finding which you won't acquiesce into Heritage Reporting Corporation (202) 628-4888 4 1
23811-1~ that'it~is unfair without it.
. /~~ Yes, we do, Your Honor.
2 MS. McPHETERS:
-(
o 3 JUDGE SMITH: You want that.
4 MR. TRAFICONTE: Yes.
5 JUDGE SMITH: Well, I'll tell you what we will do.
6 Instead of making us go into that, why don't we say the 7 Board requires it to be in for completeness and fairness, 8 whether they acquiesce to it or not.
9 MS. McPHETERS: Very well.
10 JUDGE SMITH: Without finding that there was an 11 unfairness on their part, on their approach. The overall 12 fairness requires inclusion of all of Keller's' testimony.
13 MS. McPHETERS: I think that's fine, Your Honor.
14 I would just note that rather --
G k) 15 JUDGE SMITH: Then you offer it.
16 MS. McPHETERS: Your Honor, if the Board' brings it 17 in and it is included as a portion of the Goble prefiled t 18 testimony, ne would be satisfied.
19 JUDGE SMITH: See, you want it attached to his 20 testimony.
21 MS. McPHETERS: Yes, we do, Your Honor.
22 JUDGE SMITH: As if he's adopting.it.
23 MS. McPHETERS: Your Honor.
24 JUDGE SMITH: That's his trouble.
25 MS. McPHETERS: Your Honor, we can -- with the Heritage Reporting Corporation O
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23812 1 lateness of the hour, perhaps we should argue this tomorrow 2 morning.
3 JUDGE SMITH: No, we are going to be busy J 4 tomorrow. We are oriented to it now, unless you are unable 5 to argue it.
6 MS. McPHETERS: Very well, Your Honor.
l 7 I guess I would like to be heard on it, Your 8 Honor, and we would like it in terms of what is provided for 9 in Rule 32.
10 JUDGE SMITH: Yes, I know. But when you argue, I 11 want you to take some matters into account.
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23813 1 JUDGE SMITH: Number one, we have no law library 2 here.
3 Number two, we are busy. We have a lot of 4 important things.
5 Number three, I don't think that you're going to 6 be able to come up in your arguments, and if you can we want 7 to hear about it, the type of adversary relationship we have 8 in these proceedings.
9 Now you are asking that we compel Mr. Keller to t
10 include in his testimony -- Dr. Goble to include in his 11 testimony the entire exchange.
12 MS. McPHETERS: That's correct, Your Honor.
13 JUDGE SMITH: And he will be up there and he will 14 be under oath and required to do something that he doesn't 15 want to do because of fairness.
16 MS. McPHETERS: Yes, Your Honor, those are the 17 explicit terms --
18 JUDGE SMITH: No, that's not the explicit terms.
19 That is, that the party offer it. Not that the witness 20 adopt it; that's a different matter.
21 MS. McPHETERS: No.
22 Excuse me, Your Honor, perhaps I misunderstood.
23 We wish for the Massachusetts Attorney General to offer it 24 in connection with Dr. Goble's testimony.
25 JUDGE SMITH: In connection with it. In physical Heritage Reporting Corporation (202) 628-4888
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23814 1 proximity and in relevance to it.
2 MS. McPHETERS: Yes.
l 3 JUDGE SMITH: And you're happy that he doesn't l 4 object; you want them to do it.
5 For what purpose?
6 MS. McPHETERS: Your Honor, we want it to be bound 7 into the transcript immediately --
8 JUDGE SMITH: It's going to be.
9 MS. McPHETERS: -- following the prefiled 10 testimony of Dr. Goble.
11 JUDGE SMITH: By Board order that that is 12 necessary to fairness and completeness and a full record.
13 MS. McPHETERS: Then if it appears in the record 14 in that form, we're satisfied.
15 JUDGE SMITH: What I'm saying is, you take the 16 initiative to make sure that that result comes out; and 17 that's what we will do.
18 We've read it. We agree. A full picture, a fair 19 picture requires the whole exchange.
20 If Mr. Traficonte doesn't object, your mechanical 21 approach to it as compared to the substantive approach is 22 what is troubling us.
23 MS. McPHETERS: Your Honor, the only -- if we can 24 call it a mechanical approach, is that we want it in the 25 record immediately following the prefiled testimony.
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23815 1
~1 JUDGE SMITH: You got it.
, m 2' MS. McPHETERS: Thank you.
}
l 3 We're satisfied.
4 JUDGE SMITH: Except it's your responsibility to-5 remember; that's all, just remember.
6 MS. McPHETERS: Yes, Your Honor.
7 MR. TRAFICONTE: And to offer it,'I assume.
8 JUDGE SMITH: We make it as a part of a Board 9 order just to resolve the dispute and to assure fairness.
10 So she's not even offering it. You handle the mechanics of 11 getting it there.
12 MS. McPHETERS: .Very well, Your Honor.
13 And, Your Honor, if I might just say one thing 14 more since we won't be arguing this. Mr. Keller's 15 deposition testimony which will be included in the record 16 says very specifically that he and his staff evaluated the-17 sheltering decision in question by taking into account dose 18 projections and plant-status at the time-and determined that 19 that recommendation was the appropriate one.
20 The entire premise of this argument, factually, we 21 disagree with. And I just want to say that on behalf of --
22 JUDGE SMITH: The premise of Goble's testimony is 23 challenged; yes.
24 MS. McPHETERS: Yes.
25 I want to say that on behalf of my agency, whether
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1 or not it's relevant or irrelevant, the characterization of l 2 the quality of FEMA's review in this respect is inaccurate j l
3 and that is reflected in the Koller testimony, which Your 4 Honor has directed will be part of the record.
JUDGE SMITH:
~
5 All right.
6 MR. TRAFICONTE: Well, is the portion that you are 7 directing FEMA to include or to have bound in following 8 Goble's testimony, the portion that was attached to FEMA's 9 motion?
10 JUDGE SMITH: Yes.
11 MR. TRAFICONTE: Because if that's the case and 12 FEMA has chosen --
13 JUDGE SMITH: It's only the latter part, really, 14 that I think is --
15 JUDGE McCOLLOM: 112 to 121.
16 MR. TRAFICONTE: 112 to 121.
17 JUDGE SMITH: Well, I don't have it in front of 18 me. It's the latter. !
i 19 MR. TRAFICONTE: Right.
i 1
20 MS. McPHETERS: Judge McCollom is correct. I 21 MR. TRAFICONTE: I wasn't sure that was the intent 22 of FEMA. But in the event that FEMA offers those pages we 23 would request, interestingly enough, pursuant to the same 24 rule that FEMA include as well pages 122 until 135 which 25 continues the colloquy I had with Mr. Keller.
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23817 1 JUDGE SMITH: If it'does, then we want to see it.
.f" t J 2 MR. TRAFICONTE: Yes.
Q 3 JUDGE SMITH: The Board has taken this over. We 4 just don't want to spend anymore time on the nuances and the 5 mechanics of it.
6 Our ruling is, a complete discussion of the matter 7 on the deposition for fairness to FEMA must be included.
8 And if in fairness to you requires it, we'll ask 9 more.
10 MS. McPHETERS: Your Honor, mechanically what.I 11 have with me is the copies of the portions that we included 12 in our motion. If the Massachusetts --
13 JUDGE SMITH: You two get together.
,_ 14 MS. McPHETERS: All right.
e 15 JUDGE SMITH: If you agree that his part also 16 should be in to complete the picture --
MS. McPHETERS: I have no problem with it. I just 17 18 can't physically produce it.
19 JUDGE SMITH: Right.
20 So you get together and then just remind the Board 21 and we'll slap it in there and away we go.
22 MS. McPHETERS: Thank you.
23 And, Your Honor, I regret if I aroused any wisps 24 of discontent on this and I'm very satisfied with the 25 resolution.
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23818 1 JUDGE McCOLLOM: We're used to wisps.
2 16. TRAFICONTE: I would request that we adjourn. 1 3 There's a little bit -- I don't know about a "little bit" --
1 4 there is more in this motion.
5 JUDGE SMITH: Well, the part at the end, I imagine 1 6 we' re going to be hearing the arguments.
7 MR. TRAFICONTE: Your Honor, at page 5 where the 8 Applicants identify some specific sentences under the 9 " miscellaneous" heading.
10 And then there is the second part of the motion 11 where they seek a ruling. They basically seek an extension 12 of the Sholly-Beyea ruling to certain portions of Goble's 13 testimony.
14 JUDGE SMITH: Yes.
15 Is that going to take much time?
16 MR. TRAFICONTE: What I was going to propose is 17 that Dr. Goble -- we're going to resume at 8:30 and it's the 18 intent to go to 11:15, 11:30?
19 I had a conversation with Mr. Fierce while the 20 Board was conferring and I have a feeling that if it takes 21 any time at all, and I'm sure it's going to, the combination i
22 of the 30 minutes that we might spend on this motion and Mr. {
23 Fierce finishing up with the panel that's up there, would 24 basically moot the -- I mean, I could have Dr. Goble here, l 25 he is prepared to come. I just don't think we would get to t
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23819'
'l him. .Or if we did, it would be to put him on and have his 2 t'estimony admitted and thea he would be back on Monday.
3' JUDGE SMITH: If that 's the case, we'll'just go on 4 and finish up this argument and the panel and put Goble off 5 until Monday.
6 MR. TRAFICONTE: I'11 just tell him not.to come 7 tomorrow morning. .
8 MR. TROUT: The controlling factor, Your Honor, is 9 the length of Mr. Fierce's cross.
10 MR. TRAFICONTE: Yes.
11 JUDGE SMITH: I know.
12 MR. TROUT: And we're in no-position to --
13 MR. TRAFICONTE: Right.
14 JUDGE SMITH: Well, he's represented,'and I can 15 see from his cross-examination plan, that he has very much 16 underestimated his cross-examination. And I don't have any 17 expectation that we can hurry it up any either.
18 JUDGE COLE: We're halfway through the first page 19 of two full pages.
20 JUDGE SMITH: All right.
21 There is one thing I can't put my finger on right 22 now, but it seemed to me part of your motion seemed to 23 overlook the Commission's order to us to leave in -- never 24 mind, I'll come back to it tomorrow.
25 We're adjourned then.
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l' 23820 l
f 1 Is there anything else before we adjourn, on the ,
2 record? ,
3 (No response) 4 JUDGE SMITH: We're adjourned until 8:30. i
- 5 (Whereupon, at 5
- 26 p.m. the hearing was adjourned 6 to reconvene tomorrow morning at 8:30 a.m., Friday, 7 June 2, 1999.) I 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 i
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i'
, CERTIFICATE p7-'
t
\
This is to certify that.the attached proceedings before the United States Nuclear Regulatory Commission in the' matter.
of:
i' Name: :Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2)
Docket No: 443-OL 50-444-OL
.(Off-site Emergency Planning)
Place: Boston, Massachusetts' Date: June 1, 1989 were. held as herein appears, and that this is-the' original transcript thereof for the file of the United States Nuclear l (O)
Regulatory Commission taken stenographically by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of.the foregoing proceedings.
/S/ 1 __
l (Signature typed) : Donna L. Cook jv Official Reporter l
Heritage Reporting Corporation l
f I HERITAGE REPORTING CORPORATION (202)628-4888
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