ML20248C849
| ML20248C849 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/06/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8451 ASLBP, OL, NUDOCS 8904110332 | |
| Download: ML20248C849 (278) | |
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l NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD l
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
Pages: 17960 through 16236 Place: Boston, Massachusetts 4
Date: April 6, 1989 gP.d hd8 ,
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1224 L Street, N.W., Suke 640 O Washington, D.C. 20005 (242) 628-4888 8o04110332 890406 ,_,
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17960
,- UNITED STATES NUCLEAR REGULATORY COMMISSION J ATOMIC SAFETY AND LICENSING BOARD I
In the Matter of: )
) Docket Nos.
PUBLIC SERVICE COMPANY OF ) 50-443-OL l NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY I (SEABROOK STATION, UNITS.1 AND 2) ) PLANNING EVIDENTIARY HEARING Thursday, April 6, 1989 Courtroom No. 4 Thomas P. O'Neill, Jr.
Federal Building 10 Causeway Street Boston, Massachusetts
% The above-entitled matter came on for hearing, pursuant to notice, at 9:20 a.m.
BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE RICHARD F. COLE, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
( Heritage Reporting Corporation (202) 628-4888
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17961 APPEARANCES:
For the Applicant:
THOMAS G. DIGNAN, JR., ESQ.
GEORGE H. LEMALD, ESQ.
KATHRYN A. SELLECK, ESQ.
JAY BRADFORD JMITH, 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 CHAN, ESQ.
EDWIN J. REIS, ESQ.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 For_the Federal Emercency Manacement Acency:
H. JOSEPH FLYNN, ESQ.
LINDA HUBER McPHETERS, ESQ.
k's /) 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
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17962 h APPEARANCES: (Continued)
For the State of New Hamoshire:
GEOFFREY M. HUNTINGTON, ASST. ATTY. GEN.
State of New Hampshire 25 Capitol Street Concord, New Hampshire 03301 For the Seacoast Anti-Pollution Leacue:
ROBEFT 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 Hampshire 03801
.For the Town of Amesbury:
BARBARA J. SAINT ANDRE, ESQ.
/ 'N Kopelman and Paige, P.C.
\m) 77 Franklin Street Boston, Massachusetts WILLIAM LORD Town Hall Amesbury, Massachusetts 10913 For the City ef.Haverhill and Town of Merrimac:
ASHOD N. AMIRIAN, ESQ.
P. O. Box 38 Bradford, Massachusetts 01835 For the City of Newburvoort:
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
17963 yg APPEARANCES: (Continued) <
Nss For the Town of Newburv: q R. SCOTT HILL-WHILTON, ESQ.
Lagoulis, Clark, Hill-Whilton & McGuire 79 State Street Newburyport, Massachusetts 01950 I
For the Town of Salisburv:
CHARLES P. GRAHAM, ESQ.
Murphy and Graham 33 Low Street Newburyport, Massachusetts 01950 For the Town of West Newburv:
JUDITH H. MIZNER, ESQ.
Second Floor 79 State Street Newburyport, Massachusetts 01950 O
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17964/17965 1 i
IHREX !
l ( i WITNESSES: DIRECT CROSS REDIRECT RECROSS EXAM l Richard W. Donovan l by Mr. Traficonti Prev. cont.
17966 l
l l l EXHIBITS: IDENTIFIED P.ECEIVED REJECTEQ DESCRIPTION Apolicant's:
58 18227 18228 Stipulation i offered by Massachusetts Attorney
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l DONOVAN - CROSS 17966 1 ' PROCEEDINGS
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%' 2 JUDGE SMITH: We're on the record.
3 Is there any preliminary business?
4 ('N o response.)
5 JUDGE SMITH: All right, you may proceed, Mr.
6 Traficonte.
7 MR. TRAFICONTE: Thank you, Your Honor.
8 I just want to distribute my cross-examination 9 plan.
10 Whereupon, 11 RICHARD W. DONOVAN 12 having been previously duly sworn, was recalled as a witness 13 herein and was examined and testified further as follows:
14 CROSS-EXAMINATION (Continued) 15 BY MR. TRAFICONTE:
16 Q Mr. Donovan, I did not introduce myself to you 17 yesterday. I don't think it's necessary, but I'll do it 18 just for the record. My name is John'Traficonte. I am an 19 assistant attorney general with the Commonwealth. I would 20 like to ask you a series of questions about your overall 21 qualifications and areas of expertise.
22 Your official position with FEMA is a REP program 23 officer; is that correct?
24 A (Donovan) That's correct.
25 Q Mr. Donovan, did you answer my last question with Heritage Reporting Corporation (202) 628-4886
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DONOVAN - CROSS 17967 l-1 a yes?
2 A (Donovan) Yes, I did.
3 O Would you briefly describe what a REP program 4 officer is?
5 A (Donovan) REP stands for radiological emergency 6 preparedness. And in that context, .it stands for all 7 peacetime radiological emergency planning, preparedness and 8 response. And peacetime means the use of radioactive 9 materials in a transportation mode at a fixed facility by a 10 licensee licensed by the Nuclear Regulatory Commission, by 11 federal agencies such as the Department of Defense and the 12 Department of Energy, who may have nuclear installations or 13 nuclear materials within their custody.
14 Q That's fine. I understand what radiological
)
15 emergencies might involve. I was focusing on the program 16 officer part.
17 What would a program officer such as yourself, 18 what would your duties be?
19 A (Donovan) The duties would be to be responsible 20 for all facets and aspects of the program at the regional 21 level.
22 Q At a regional level?
23 A (Donovan) That's correct.
24 Q And, in fact, you are assigned to Region 10, are 25 you not?
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DONOVAN - CROSS 17968 g-~(- 1 A (Donovan) I'm assigned to Region 10, and also 2 assigned to Region 1.
3 Q All right. Well, we may want to come back to 4 that.
5 You're based on Region 10, are you not?
6 A (Donovan) That's correct.
7 Q And you reside in the State of Washington?
8 A (Donovan) That's correct.
9 Q What are the qualifications for becoming a program 10 officer?
11 A (Donovan) There are various Office of Personnel 12 Management policies that are delegated to each federal 13 agency, and then the agency defines the functions and 14 missions of the agency at the headquarter's level -- at the
[}
15 regional level, and the ability to manage these programs and 16 functions are then reestablished in position descriptions.
l 17 So to apply for a given position description one 18 has to be certified by personnel as having batt:
19 qualifications.
20 With regard to this program and the many 21 subprograms within it, the qualifications usually fall into 22 the two categories, and I don't know how much deeper you l '
l 23 want me to go.
24 Q It's actually the qualifications, not so much how 25 they get defined and by whom, but what those qualifications Heritage Reporting Corporation (202) 628-4888 l
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DONOVAN - CROSS 17969 1 are that was the focus of my question.
2 A (Donovan) Right.
3 Q Go ahead.
4 A (Donovan) My position description is 5 approximately 20 pages long. I did not bring a copy with 6 me, but --
7 Q Well, let me come at it in a little bit more 8 detail then.
9 What level of education is required for the 10 position?
11 A (Donovan) Normally, the equivalent of a college 12 degree and some years of work experience in the field.
13 Q In what field?
(j 14 A (Donovan) 'In the field of planning, and ideally 15 in planning for hazardous materials of which radiological 16 materials are a subset.
17 Q And when you say in planning, did you intend to 18 say in emergency planning?
19 A (Donovan) Right.
20 Q Not just general planning, but emergency.
21 A (Donovan) That's correct.
22 O You say the equivalent of a college degree. A 23 college degree in any particular area, Mr. Donovan?
24 A (Donovan) Well, again, I'm not a personnel 25 officer. But normally to be a program manager for anyone of
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, DONOVAN - CROSS 17970 1 FEMA's programs requires a certain degree of knowledge, if w\
\' ,/
2 experience and demonstrated expertise. And normally to 3 reach, to become a program manager one either has to have 4 matriculated many years working experience and to address l 5 that. A college graduate entering into the federal agency, 6 FEMA would not start out as a program manager. He would 7 start out at what we would refer to either as a GS-5 or a 8 GS-7 level, entrance level, and he would matriculate up.
9 And it may be after five, 10, 15 years of work experience 10 before he would reach the level that he would be assigned a 11 total program to manage.
12 Q All right. You are using program manager. Is 13 that interchangeable with program officer?
/~ 14 A (Donovan) Well, in this case the program officer ks}
15 manages the program. Someone else who is not a program 16 officer would not manage the program or administer the 17 program at the regional level. He would only be assigned to 18 a portion thereof and be reportable to someone else.
19 Q All right, I'm not sure I understood the last 20 answer.
21 You are the REP program officer in Region 10, are 22 you not?
23 A (Donovan) That's cor.tect.
24 Q Are you also the REP program manager for Region 25 107 1
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! DONOVAN - CROSS 17971 r- 1 A (Donovan) That is correct.
D 2 Q Is that an additional title, or does that involve 3 additional duties?
l 4 A (Donovan) The program officer manages the 5 program.
l 6 Q Now when did you become an REP program officer?
7 A (Donovan) My current position description, 1982.
8 Q What does it mean to say "my current job 9 description"? Were you a program officer in effect before 10 1982, but without the title?
11 A (Donovan) Yes, 1975.
12 O We' re going to have a long --
13 A (Donovan) Well, you started out --
14 Q Let me just finish.
)
15 We are going to have a few days together here, 16 We've had this habit, you and I, before at depositions. Let 17 me finish my question and I will let you, or try to let you 18 finish your answers. It's going to be a lot easier for both 19 of us.
20 Let me go back. I heard you indicate that you may 21 have in '82 had the title program officer, but in effect had 22 that position prior to 1982.
23 Is that a fair statement?
24 A (Donovan) Yes, it is.
25 Q Okay. When did you first have the position, m
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i DONOVAN - CROSS 17972 rx 1 either by title or by function, of a program officer at 1
i 2 FEMA?
3 A (Donovan) 1975.
4 Q And when did you first start work at FEMA?
5 A (Donovan) 1974.
6 Q And what experience had you had prior to 1974 in 7 the planning or emergency planning area?
8 A (Donovan) I'd been involved in my previous job, 9 basically since 1966, in planning, which included emergency 10 preparedness planning.
11 Q So when you came in the door at FEMA, you already 12 had some real world experience with regard to emergency 13 planning?
14 A (Donovan) That's correct.
{v~)
15 MR. FLYNN: I would like to offer a point of 16 clarification. I think we are all aware that FEMA did not 17 exist until 1979. And clearly Mr. Donovan's answers refer 18 to predecessor agencies as well as FEMA. I just offer that 19 for the clarity of the record.
20 MR. TRAFICONTL': Actually we don't have the birth 21 of FEMA at front most in our minds, Mr. Flynn. I did not 22 know that.
23 MR. FLYNN: We're 10 years old.
24 MR. TRAFICONTE: You and TMI in the same month.
25 BY MR. TRAFICONTE:
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DONOVAN - CROSS 17973' 1 Q Your college degree is in economics v is it not?
2 A (Donovan) Yes, it is.
3 Q Do you have any formal education in engineering?
4 A (Donovan) I have some credits. I have a -- ,
5 University of Washington does not have minors. But if they 6 had a minor program, I had enough math and natural sciences 7 to qualify for a minor at most other colleges.
8 Q You are describing the University of Washington at 9 the time which you were an undergraduate there?
10 A (Donovan) Yes.
11 Q You had some math and science. My question was 12 engineering.
13 A (Donovan) I had some engineering courses as well.
14 Q As an undergraduate?
15 A (Donovan) Yes.
16 Q You graduated in approximately 19657 17 A (Donovan) That's correct.
18 Q Have you had any engineering courses from that 19 date to this?
20 A '(Donovan) No, I have not.
21 Q And that engineering would include traffic 22 engineering, would it not?
23 A (Donovan) At the level -- well, at the level I 24 took courses in college, it was mechanical and civil 25 engineering.
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DONOVAN - CROSS 17974 7-w 1 Q All right. But my question ie, you haven't had D 2 any courses or official training in traffic engineering, ;
i 3 have you?
4 A (Donovan) Yes, I have.
S Q You have?
6 Where did you take those courses?
7 A (Donovan) Well, I did not take formal courses.
8 FEMA'uses and has used as part of its program for reviewing 9 evacuation plans the DYNEV model prepared for the Federal 10 Highway Administration by a firm known as KLD.
11 We as an agency offer training under the auspices 12 of KLD. I've taken that training. I've used the model. I 13 have prepared evacuation plans for other sites, and have 14 used the model, analyzed existing evacuation plans. I have
[}
15 had KLD employees look at my work and verify that I am what 16 they would consider an accomplished student in using their 17 model and understanding the principles of traffic 18 engineering for evacuation planning.
19 Q So you consider yourself expert in the area that 20 we can define as follows: You consider yourself expert in 21 the use of the I-DYNEV model for modeling an evacuation and 22 calculating an ETE.
23 Is it a fair statement that you consider yourself 24 expert in that regard?
25 A (Donovan) Yes, I would consider that a fair
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DONOVAN - CROSS 17975
-~ 1 statement. I would put a different 'aterpretation, perhaps, 2 on it.-
3 0 I haven't interpreted it yet.
4 A (Donovan) Right.
5 Q It's a fact, is it not, Mr. Donovan, that you did 6 not review the Volume 6 ETE study that is the ETE study 7 associated with Applicants' Exhibit 427 It's a fact that 8 you did not review that ETE study in this case, isn't it? I 9 A (Donovan) It is not a fact. I did review that 10 study.
11 Q All right. Well, let me turn to your prefiled 12 testimony.
13 Do you have a copy of your prefiled testimony?
()
V 14 A (Donovan) Yes.
15 Q I would like to direct your attention to page 2, 16 the paragraph begins on that page essentially in the middle 17 where it begins, " FEMA offers no testimony".
18 Do you see that?
19 A (Donovan) Yes, I do.
20 Q Just continuing, " FEMA offers no testimony on 21 Contentions JI-5, 7," and then omitting certain other 22 contentions your testimony continues, "In addition, FEMA 23 understands that NRC is offering its own witness, Dr. Thomas 24 Urbanik, on traffic management issues related to evacuation l 25 time estimates. FEMA defers to Dr. Urbanik on those 1
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DONOVAN - CROSS 17976
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, 1 issues."
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\- 2 In addition, just so the record is clear on this 3 point, your counsel filed a pretrial brief in this matter.
4 Do you have a copy of that available to you?
5 A (Donovan) Yes, I do.
6 0 If you would turn to the attachment, Attachment A, 7 and turn to page 1 of 5, you will see that Attachment A is a 8 sequential listing of all of the contentions that are still 9 being litigated. And let me just make the representation to 10 you that JI-1, 2 and 3 are ETE contentions.
11 This pretrial brief indicates that -- well, 12 actually it doesn't indicate whether FEMA is --
13 MR. DIGNAN: I've got an objection. I'm not j i
/' 14 heariry any questions. I'm hearing a speech. I think the
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i 15 speech was set off when the question was asked, you didn't 16 review the ETE study. The witness said, yes, I did.
17 And is this impeachment of that answer?
18 MR. TRAFICONTE: Yes, that's a good
! 19 characterization. I'm going to --
20 MR. DIGNAN: Well, why? There is nothing in there 21 inconsistent. They say they are not offering testir.any.
22 You asked him if he had reviewed the study. He said, yes, 23 he's reviewed it. They are saying they are not offering 24 testimony.
25 Is it your purpose to make him an expert on the r\ Heritage Reporting Corporation (N (202) 628-4888 i
DONOVAN - CROSS 17977 f-~g 1 ETE study and ask him about it?
"" 2 MR. TRAFICONTE: No. I mean, if you want me to 3 give you a copy of my cross-examination plan, I can do that.
4 What the point here is --
5 MR. DIGNAN: Well, I object to this argumentation 6 as opposed to questioning.
7 MR. TRAFICONTE: It wasn't argumentation. It was 8 a line of questioning trying to explore what FEMA is 9 offering testimony on and what it is not offering testimony 10 on.
11 JUDGE SMITH: I wish you would be a little bit 12 more expressive on your -- what particular questions are you 13 objecting to?
14 MR. DIGNAN: I'm objecting to the fact that I'm 15 not hearing any questions. I'm hearing a long argument.
16 JUDGE SMITH: Well, try to accommodate him, Mr.
17 Traficonte, but continue.
18 BY MR. TRAFICONTE:
19 Q Ir "EMA offering testimony on JI-1, 2 and 3?
20 A (Donovan) By that attachment, no.
21 Q Well, I think that attachment leaves that question 22 open. So let me put it directly to you.
23 By that attachment or in any other form, is FEMA 24 intending to offer testimony on JI-1, 2 and 37 25 A (Donovan) I believe the answer is no.
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DONOVAN - CROSS 17978 f- s 1 Q Okay. So you did review the ETE study, Volume 6, 2 that's associated with the SPMC, Applicants' Exhibit 42,.but 3 you are not here testifying as to its adequacy.
4 Is that a fair statement?
5' A (Donovan) It's my understanding that there was an 6 agreement between FEMA and NRC on how they would proceed 7 with the testimony on this hearing. And the agreement was 8 that NRC would take the lead on certain contentions, and 9 FEMA would take the remaining contentions, that both my 10 testimony and Mr. Flynn's trial brief representing the 11 agency addressed what contentions that we would entertain 12 and respond to.
13 Q All right. Just to follow up on that.
[~h 14 When you say that you have this expertise, you V
15 were capable, were you not, of forming a judgment as to the 16 adequacy of the ETE study that is associated with 17 Applicants' Exhibit 42?
18 MR. FLYNN: I object to the relevance of this 19 entire line. It has been established that we are not 20 offering testimony on ETEs, It's beyond the scope of the 21 direct examination or the direct testimony for one thing.
22 JUDGE SMITH: How do you tell what the scope of 23 the direct testimony is?
24 MR. FLYNN: That was the point of the paragraph 25 both in the testimony, the two page prefiled testimony, and m
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h DONOVAN - CROSS 17979
'l my trial brief that says that there are certain things about 2 which we are not offering testimony.
3 MR. TRAFICONTE: Even though you are.
4 MR. FLYNN: May I finish, Mr. Traficonte?
5 We have identified, and I thought it was quite 6 clear that the evacuation time estimates are a subject on 7 which we are not offering testimony. That's been 8 established. I don't understand the point of belaboring 9 that.
10 MR. TRAFICONTE: Okay, I think that's --
11 MR. FLYNN: Where.can this go?
12 MR. TRAFICONTE: That's fine. It will go to a 13 motion to strike, quite naturally.
14 MR. FLYNN: Strike what?
15 MR. TRAFICONTE: Well, I will give you the 16 reference if you will give me a second.
17 If you turn to Exhibit 43 (c) , 43 (c) is the 18 December 1988 FEMA review and evaluation of the SPMC. I 19 would move to strike on page 66 the FEMA finding of adequacy j 20 and the entire discussion as to J-10-I, projected traffic 21 capacity -- just so the record is clear. I'm reading from 22 page 66 of the Applicants' Exhibit 43 (c) .
23 MR. DIGNAN: Wait a minute. Are you reading page 24 66 globally numbered or what?
25- Upper right-hand corner, John?
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DONOVAN - CROSS 17980 1 JUDGE COLE: Page 85 globally.
2 MR. TRAFICONTE: All right, I don't --
3 MR. DIGMAN: They are globally numbered.
4 - MR . TRAFIC1NTE: I have a different copy. Let me 1 5 just get the globally numbered copy. q a
6 JUDGE SMITH: All right. We can stay on the 7 witness's page 85 of 180.
8 MR. TRAFICONTE: All right. I would move to 9 strike the -- I assume the pages are formatted the same way, 10 but at the bottom portion of page 66 there is a valuation l 11 heading, "J-10-I", and there is one word stated " adequate".
12 I would move to strike that word.
13 MR. DIGNAN: I oppose the motion to strike, and we 14 might as well have this out now.
15 I have never agreed with Mr. Flynn's statement of 16 what he is putting this witness on for.
17 MR. TRAFICONTE: But you object to my cross-18 examination in the same vein.
19 MR. DIGNAN: No. I wanted to get this out on the 20 floor.
21 MR. TRAFICONTE: Good.
22 MR. DIGNAN: And then I will back off.
23 The FEMA reports clearly do make a finding of l
24 adequacy in the ETEs. I have never understood counsel's 25 position that they are not offering testimony on the EJEs O Heritage Reporting (202) 628-4888 Corporation j i
DONOVAN - CROSS 17981' g-j 1 and I would like to get it cleared up right now. Because I ;
l' 2 understood-this witness is prepared to defend these reports.
3 'MR.fTRAFICONTE: Your Honor,.it is clear --
4 MR. DIGNAN: And' FEMA'does make a finding on the 5 ETEs just as Mr. Traficonte pointed out, and I really don't 6 understand why they are-taking the position they are.
7 I understood -- maybe it's just that they are not 8 offering affirmative testimony. I know Dr. Urbanik is doing 9 that. But I am all of a sudden losing a piece of my 10 rebuttable presumption simply because, as I understand it, 11 FEMA's lawyer .is taking the position --
12 (FEMA cot.nsel -Jnferring.)
13 JUDGE SMITH: You want him to hear what you are 14 saying?
15 MR. DIGNAN: Why don't I let him finish his 16 conversation. Then I'll finish my argument.
17 MR. FLYNN: No , you go ahead.
18 MR. DIGNAN:. And the witness, I have no doubt he's 19 got the expertise to defend that finding, and I guers I 20 would like it straightened out. It makes no sense to me at 21 all, and it's that simple.
22 I'm sorry, I would like to give.you a mocion, Your 23 Honor. Well, I've got it in a procedural posture. He's 24 made a motion to strike. I'm opposing the motion on the 25 grounds that FEMA has in fact made the finding. FEMA has in Heritage Reporting Corporati,on (202) 628-4888
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l DONOVAN - CROSS 17982 0 1 fact offered the witness as somebody ready to defend the U 2 reports, and the witness should defend the report.
3 MR. TRAFICONTE: This has to go down in litigatien 4 history. We have a lawyer trying to get some other party's !
5 witness to say something that that party is not prepared to 6 say and that the lawyer in fact is --
7 JUDGE SMITH: To complicate things even further, 8 that witness is not representing a party to the proceeding, 9 and I don't know how they do fit in.
10 What did we learn about all of this in law school?
11 MR. TRAFICONTE: I learned that the witness says 12 he's not prepared to -- I didn't learn anything in law 13 school about this. Let me preface any comment about --
14 MR. DIGNAN: No , the witness has not said he's not J
15 prepared to defend it.
16 MR. TRAFICON'IE : Mr. Donovan --
17 MR. DIGNAN: You were very careful how you 18 questioned him. You asked him whether he was offering 19 testimony, and he said he appare'tly is not because of the l 20 thing.
21 MR. TRAFICONTE: I didn t hear "apparently . I 22 heard him say he wasn't.
23 MR. DIGNAN: The witness did say to me when I 24 asked him yesterday, are you prepared to defend the reports, 25 he is. Now maybe he should be questioned as to whether he's Heritage Reporting Corporation (202) 628-4888
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1 DONOVAN - CROSS 17983 p 1 backing off on that finding, and then maybe you have got a
.v 2 motion if he does.
3 MR. TRAF7 CONTE: I thought the answers were pretty 4 clear that he has already backed off of the finding and that 5 the motion to strike this evaluation statement that it's 6 adequate should be granted.
7 MR. DIGNAN: I hav 't heard him back off of it.
8 9
10 11 12 13 15 16 17 18 ,
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23 24 25 :
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-5 DONOVAN - CROSS .17984 1 MR. FLYNN: Can I confer with counsel on NRC 2 Staff? "I wish'to be heerd on this but I want to confer 3 first.
4 JUDGE SMITH: All right.
5 (Counsel conferring.)
6 MR. FLYNN: I'm ready.
7 JUDGE SMITH: Mr. Flynn?
8 MR. FLYNN: The reason the testimony was 9 structured the way it is, is that it's the consensus of NRC 10 and FEMA that the most qualified witness on the subject is 11 Dr Urbanik. And because of the prior arrangement that NRC 12 nas with Dr. Urbanik it made more sense for NRC to sponsor 13 him than for FEMA to sponsor him.
14 We are certainly not repudiating the finding. And 15 if the Board sees fit to allow questions about how the 16 finding was arrivod at; what the basis is, this witness is 17 certainly capable of providing that testimony.
18 The point that I wish to press is, we came here 19 with the intention of testifying on those contentions which 20 we identified in the testimony in the pretrial brief. We 21 are at a disadvantage because the witness has not 22 specifically prepared to testify about the evacuation time 23 estimate contentions, which is not the same as saying he is 24 not capable of doing it. I have no hesitation whatsoever to 25 say that he is capable.
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DONOVAN - CROSS 17985
'l But we.may get a garbled record. It may lead us 2 off in directions we don't anticipate. It may ultimately 3 waste the time of the Board and the parties.
4 It makes more sense to me and I hope it makes 1
5 sense to the Board to have Dr. Urbanik defend the adequacy 6 of the evacuation time estimates.
l 7 Certainly the testimony of this witness will be 8 that he was fac Jdar with Dr. Urbanik's work and relied on 9 it as part of his judgment which is reflected in the report.
10 It is not the entire basis. He has other reasons of his 11 own. He has already testified that he has a working 12 knowledge of ETEs in his own right.
13 To summarize what I would say is the questions 14 that have been posed or about to be posed, the line of 15 questioning goes beyond what we intended for our direct 16 testimony.
17 MR. TRAFICONTE: Then he should withdraw the 18 direct testimony. I just can't see how that isn't the 19 obvious consequence.
20 MR. FLYNN: The direct testimony does not include ;
21 the --
22 MR. TRAFICONTE: Joe, I'm sorry, Mr. Donovan's own !
23 prefiled testimony incorporates by reference the report.
24 What do you mean it doesn't include?
25 MR. FLYNN: That's qualified by the statements O Heritage Reporting (202) 628-4888 Corporation
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DONOVAN - CROSS 17986 1 that we are arguing.
2 MR. TRAFICONTE: Right. So that it isn't there.
3 So that your testimony --
4 MR. FLYNN: That was the point I made in the first 5 place.
6 MR. TRAFICONTE: Then what is the relevance of 7 your comments as to what basis he may or may not have for 8 his adequacy finding when you are now stating that he is not 9 here testifying as to an adequacy finding.
10 MR. FLYNN: Well, that shouldn't surprise anyone.
11 We said that from the beginning.
12 MS. CHAN: Your Honor --
13 MR. TRAFICONTE: I take that to mean that Mr.
14 Flynn is agreeing with me in my motion to strike.
}
15 MR. FLYNN: I'm not supporting the motion.
16 MR. DIGNAN: It's my ei'.hibit you' re trying to 17 strike, so give me a shot.
18 JUDGE SMITH: Let's back up. Let's go more to the 19 fundamentals that we are dealing with here. Motions to 20 strike do not reach the problem.
21 Now, as we have known from the beginning r.he 22 Applicants have elected, as they have a right to, as the 23 incidental beneficiary of the FEMA presumption to stand on 24 that presumption.
25 It may very well be that the lawyers for NRC Staff
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DONOVAN - CROSS. 17987 1 and lawyers for FEMA have decided among them that Dr.
O '2 Urbanik has a better expertise in matters of ETE. But there 3 is no rebuttable presumption attended to Dr. Urbanik's 4 views.
5 MR. FLYNN: I understand the point you're making, 6 Your Honor. The rebuttable presumption presents different 7 . issues in whether, as an abstract matter, the ETEs are 8 adequate.
9 JUDGE SMITH: Well, it does not.
10 MS. CHAN: Your Honor --
11 JUDGE SMITH: I'm not now concerned, directly 12 concerned about whether the ETEs are accurate or rather Mr.
13 Donovan or Dr. Urbanik is the better witness or anything 14 else. I'm concerned about what is the status of this
)
15 statement in here? What is the status of the rebuttable 16 presumption?. Whatever happened to the Board's directive 17 that Mr. Donovan appear here to defend FEMA's reports and 18 findings, whatever happened to that?
19 I think this is a very timely discussion. Where 20 are we in this case? What are the parties doing?
21 MS. CHAN: Your Honor, perhaps the Staff can shed 22 some light on the situation. Knowing that Dr. Urbanik's 23 testimony does not have the weight of the rebuttable 24 presumption FEMA has made a separate - a finding adequacy 25 on this particular ETE study based on its judgment and Heritage Reporting Corporation (202) 628-4888
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DONOVAN - CROSS 17988 g-~g i reliance on Dr. Urbanik's work.
L) 2 Since Dr. Urbanik alone cannot present his 3 testimony to support any rebuttable presumption it does not 4 have the weight of rebuttable presumption because he cannot 5 make a finding that will give his testimony that kind of I
6 weight.
7 FEMA is entitled to rely on the expertise of Dr. I 8 Urbanik since it did not have the inhouse expertise on the I
9 matter, the NRC offered to provide Dr. Urbanik in that 10 regard.
11 Mr. Donovan can rely on Dr. Urbanik's expertise in 12 his finding of adequacy. And I think if we allow this line 13 of testimony to go forward I think it will reveal that he 14 has independent expertise and used his personal judgment.
15 But I think at this point it's not timely to 16 entertain any motions to strike until we explore this 17 further. I don't think we can do it without finding out the 18 basis of Mr. Donovan's conclusions.
19 JUDGE SMITH: Then you don't agree with Mr. Flynn 20 that this witness is not here to defend this statement? {
t 21 MS. CHAN: I think the witness has to defend the I l
22 statement because the findings of FEMA are the only ones 23 that has the rebuttable presumption and not whatever Dr.
24 Urbanik says.
25 MR. TRAFICONTE: Your Honor, may I comment on the
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DONOVAN - CROSS 17989 1 Staff's argument that I just heard at least?
2 I think I heard the Staff say that FEMA took the 3 position, it did not have inhouse expertise sufficient 4 enough to make'a judgment on the ETE study.
5 MS. CHAN: No. To provide the testimony for this 6 particular proceeding.
7 MR. TRAFICONTE: Okay. Provide the testimony on 8 ETE matters for this particular proceeding. The distinction 9 I don't see there, but we will take her language.
10 They then proceeded to either negotiate with NRC 11 Staff or in some fashion discuss with NRC Staff the 12 importation, if you will, of Dr. Urbanik and his judgment.
13 They take the Urbanik judgment, they hand the baton to Mr.
() 14 15 Donovan and.Mr. Donovan comes in and says, adequate, it gets a rebuttable presumption when it's really the NRC Staff's 16 own expert who has made the judgment.
17 MS. CHAN: Your Honor, I don't think I -- perhaps 18 I was not clear.
19 JUDGE SMITH: It's more of a wand.
20 MR. TRAFICONTE: Maybe it's a wand, I don't know.
21 MR. DIGNAN: Since this is my presumption --
22 MR. TRAFICONTE: Look at it from -- let me finish, 23 I'm almost done. l 24 MR. DIGNAN: Excuse me.
25 MR. TRAFICONTE: We're going to be interrupting
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DONOVAN - CROSS 17990 1 each very frequently.
'- 2 Our position as Interveners, obviously, is we are 3 trying to rebut the presumption. It seems transparent that 4 we can rebut it if the parties offering it don't want to 5 defend it. And if they then say, the person who should be 6 defending this judgment is an NRC Staff expert on whom we 7 relied, well that's fine. I have no problem with that. But 8 then there can't be a rebuttable presumption, 9 MR. DIGNAN: Oh, yes, there can. That's my point.
10 MR. TRAFICONTE: I would love to hear that one.
11 MR. DIGNAN: FEMA would certainly be free at any 12 time to go out and contract for anything they need to do to 13 make findings. There is no question in my mind about that.
/^'\ 14 Any government agency could do it. They could have b 15 contracted with a private contractor to do an analysis for 16 them and made a finding on the basis of that analysis.
17 What would then happen, I would assume, is FEMA 18 when they came in to defend it would put on their program 19 director and beside him would be sitting this expert so that 20 the cross-examining party could explore the basis of the 21 expert that was being relied upon.
22 What Mr. Traficonte is really making a point on at 23 this point is, he thinks Dr. Urbanik ought to be sitting up 24 there today, and maybe I do, too, but that's a no never mind 25 because you're going to get your crack at Urbanik anyway.
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DONOVAN - CROSS 17991 f-~g 1 But the point I wish to make is this, FEMA has 2 made a finding under the regulations that gives me a 3 rebuttable presumption until it is rebutted.
4 Now it may well be that Mr. Traficonte can rebut 5 it either through brilliant cross-examination of Mr.
6 Donovan; brilliant cross-examination of Dr. Urbanik; or 7 brilliant testimony by his own experts.
8 But what I don't want to see happen is to see it l
9 rebutted because FEMA's lawyer has decided for reasons of 10 his own that, quote, "He's not offering the testimony."
11 It's offered. The witness is sitting there. He'can either 12 go along with it or not go along with it. Mr. Traficonte 13 can either break him down or not break him down.
14 But I don't see why my rebuttable presumption 15 should walk out the door because Mr. Flynn makes a decision 16 with the Staff lawyers that, quote, "They don't want this 17 witness testifying on it, they want another one."
18 As I understand it the Staff is back there saying, 19 they don't have any objection to this witness defending the 20 finding and they've got Urbanik ready to go anyway.
21 22 23 24 :
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DONOVAN - CROSS 17992 1 JUDGE SMITH: It's really quite simple, either it 7-~
2 defends a finding or it's out. I mean, it is not self-3 defending.
4 MR. FLYNN: Your Honor, I'm persuaded that, yes, 5 we can and should offer the justification for the conclusion 6 that is in the report.
7 I would pose the question,'though, are there any 8 limits to the examination?
9 JUDGE SMITH: I don't know what they would be, 10 really. I mean, it's a big undertaking to come up with a 11 very large report and defend it.
12 MR. FLYNN: Very well.
13 JUDGE SMITH: I don't know what they would be.
14 They would have to be within the scope of the report.
f~)}
15 MR. FLYNN: Well, I'm certainly not going to 16 represent to the Board that we're withdrawing the finding or 17 anything that would lead to that result.
18 JUDGE SMITH: Well, you can't really.
19 So long as we're focused on this problem let's 20 make sure we understand the entire relationship. FEMA has 21 before this proceeding elected to rely upon Dr. Urbanik's 22 expertise on ETE matters. It's not just for this proceeding wl.ere that came about, as I understand. !
23 24 MR. FLYNN: That's correct. 1 25 JUDGE SMITH: If there had been no adjudication on i
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DONOVAN - CROSS 17993 1 the ETEs,.would FEMA also then have relied upon Dr. Urbanik?
l 2 MR. FLYNN: I am certain that's the case.
3 JUDGE SMITH: Do you know, Mr. Donovan, would that 4 have likely been the case?
5 THE WITNESS: (Donovan) I can't say, Your Honor.
6 It was brought to my attention and I was requested to read 7 and review the testimony that was offered on the New 8 Hampshire Plan. Dr. Urbanik, as you know, testified before 9 you and offered testimony on that.
10 JUDGE SMITH: He has testified in virtually every 11 ETE litigation that has ever come before a Licensing Board.
12 THE WITNESS: (Donovan) To me your question -- I 13 interpreted your question, did FEMA always use Dr. Urbanik?
( 14 JUDGE SMITH: Is it a regular course of business 15 type of thing for FEMA to do its business on ETEs with the 16 cooperation of NRC Staff and in particular Dr. Urbanik?
17 THE WITNESS: (Donovan) I believe that's been the 18 case.
19 JUDGE SMITH: Is this analogous to FEMA using NRC 20 Staff for its expertise in protective action 21 recommendations?
22 THE WITNESS: (Donovan) No. I don't understand 23 your question.
24 JUDGE SMITH: Well, we're going to get into 25 litigation on the adequacy of protective action
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( 1 recommendations and I understand that the NRC Staff, in the 2 exercise, handled that and not FEMA. We've never been down !
3 this route before, I don't know where we're going.
4 MR. FLYNN: No. I think the point you're trying i 5 to raise and perhaps the witness doesn't understand is that l
6 the -- it's the issue of an export relying on other experts.
7 And that's permissible and the testimony may be allowed l
l 8 despite the hearsay rule, if it's done in the regular course 9 of the expert witness' work.
10 So your question really is, is this the kind of 11 thing that FEMA does routinely?
12 JUDGE SMITH: Yes. Right.
13 Well, he has already answered that with respect to 14 ETEs; that's sufficient. He doesn't know with respect to
)
15 the Trotective action recommendations during the exercise. I i
16 That is the one thing that came to my mind, there seemed to 17 be a departure.
18 Did you want to be heard?
19 MS. CHAN: Your Honor, the Staff might be able to 20 provide some information in that regard. As far as this 21 particular exercise the NRC did play a role because the NRC 22 is a member of the RAC and has observers observing the PARS.
)
23 And apparently it depends on the expertise in the 24 FEMA region conducting the exercise, whether or not NRC has 25 a role in the PAR generation observations.
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DONOVAN - CROSS 17995 1 And in this case, this particular case and I'm 2 informed in other cases NRC does have a role in observing 3 that portion of the exercise.
4 JUDGE SMITH: You all agree that you have to 5 defend the statement.
6 MR. FLYNN: Yes. In light of this discussion I 7 will withdraw the objection.
8 MR. TRAFICONTE: Just a final point on the 9 discussion that we just had. I don' t believe that FEMA's 10 entitled to basically retain or make use of an NRC Staff 11 expert; rely on it; bring it into the proceeding through a 12 RAC Chairman; and then have it labeled a FEMA determination, 13 thereby getting a rebuttable presumption when if the same
~
14 witness comes in from the Staff it doesn't have rebuttable 15 presumption or presumptive status. I don't think that will 16 fly.
17 JUDGE SMITH: But it is so convenient, Mr.
18 Traficonte.
19 MR. TRAFICONTE: Yes. But it's a magic wand or 20 even worse.
21 MR. DIGNAN: It is a magic wand and President 22 Carter handed out the magic wand.
23 JUDGE SMITH: That's right.
24 MR. DIGNAN: Unfortunately for you President 25 Carter handed out that magic wand to FEMA.
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1 DONOVAN - CROSS 17996 l 1 MR. TRAFICONTE: Yes. Yes. I understand.
7-2 MR. DIGNAN: It used to be that the Staff had the i
3 magic wand. i 4 MR. TRAFICONTE: I understand that FEMA is the 5 lead agency and is to make these judgments and when it comes 6 in clothed with its expertise and its independence, when it 7 comes in with that judgment it gets a rebuttable 8 presumption.
9 But the FEMA testimony and the FEMA witness and 10 the FEMA lawyer is in here saying that as to these matters, 11 ETE matters, you' re not hearing FEMA, you're hearing FEMA
- 12. basically to tell you or find adequacy based on what an NRC 13 expert has communicated to FEMA. That's fine. I don't 14 think it's illicit. But it can't get a rebutt-able 15 presumption attached to it.
16 JUDGE SMITH: It can. I think it can get a 17 rebuttable presumption attached to anything it chooses to 18 touch in the course of business with that rebuttable 19 presumption wand. You know, they can put it on a dead horse 20 and bring it in here and drag it in here and give it to us 21 and it has a rebuttable presumption.
22 Now how difficult it is to rebut that presumpc. ion 23 is an entirely different matter.
24 MR. TRAFICONTE: Your Honor, your treatment of 25 dead horses is not even-handed, l
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DONOVAN - CROSS 17997 1 (Laughter) 2 MR. TRAFICONTE: Their dead horse can sit over 3 there and testify and our's can't.
4 MS. CHAN: Your Honor, I think Mr. Traficonte 5 might have forgotten or maybe he doesn't know that some of 6 the observers that provided input into the FEMA final report 7 were not FEMA. I mean, they may have been from other 8 agencies.
9 So if he goes to exclude Dr. Urbanik he is also 10 excluding part of the findings.
11 MR. TRAFICONTE: I'm not going to exclude him.
12 I'm moving in a case where they're relying as they are -- in 13 fact their prefiled testimony and briefs say they're not 14 filing testimony on these issues.
)
15 But FEMA takes that position. And it's clear that 16 by prior arrangement and relying on Dr. Urbanik, when they 17 take that position they're just not entitled to a rebuttable 18 presumption on those matters.
19 JUDGE SMITH: We're going to rule to the contrary.
20 However, that doesn't mean that your argument is ignored.
21 We could have the NRC rebuttable presumption shuttled right 22 over to FEMA and get your rebuttable presumption and come on 23 back.
24 '4e wi31 deal with it realistically, Mr.
25 Traficonte. Right now the issue is they can come in with a Reporting Corporation
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DONOVAN - CROSS 17998 1 rebuttable presumption. Now rebut it. You have your ,
2 opportunity. Everything is being done. The basis for the 1
3 presumption'is on the floor for attack.
4 The fact that they're depending upon Dr. Urbanik 5 for their rebuttable presumption in no way prejudices you.
6 Dr. Urbanik will be here. It either has merit or it 7 doesn't.
8 But at the threshold we accept rebuttable 9 presumption.
J 10 MR. TRAFICONTE: Just so the record is clear, I 11 would make the same motion and we would have the same 12 argument as to the finding set forth on pages 68 and 69 of 13 Exhibit 43 (c) and that has to do with the evaluation
/\ 14 criterion J-10-L.
V 15 JUDGE SMITH: This being pages 87?
16 MR. TRAFICONTE: I'm sorry, yes, sir. I don't 17 know the global pages.
18 JUDGE SMITH: 87 of 180.
19 MR. TRAFICONTE: And on the 87th page there is
)
20 again the judgment made of adequate as to J-10-L and we 21 would just extend the motion to that finding as well.
22 JUDGE SMITH: I think that your motion mutated 23 during the discussion. You first moved to strike based upon 24 Mr. Flynn's representation that he was not here to defend ;
i 25 it, would not defend those points. But now he has changed I
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d DONOVAN - CROSS 17999 l 7-'s 1 that ind he is here to defend it.
( 'l 2 Now you have a new basis, but I don't think you 3 made a particular motion or you transmogrified your original 4 motion to one that is something different now.
5 MR. TRAFICONTE: Well, the new form of the motion 6 was to move that the Board rule that no rebuttable 7 presumption attached to those specific findings of adequacy.
8 JUDGE SMITH: All right.
9 And that motion is objected to I would guess.
10 MR. TRAFICONTE: Yes.
11 MR. DIGNAN: I would like to hete the grounds for 12 the motion so the record is clear on appeal as to what your 13 ground is.
(~' 14 MR. TRAFICONTE: I think the record will be quite 15 clear. We just had the argument. I don't think we need it 16 again.
17 JUDGE SMITH: It's because of improper reliance 18 upon NRC Staff witness Dr. Urbanik.
19 MR. DIGNAN: Is that the ground?
20 MR. TRAFICONTE: I don't want to necessarily 21 exceed to that and everybody say that's the only basis. And 22 I also don't want to waste the time and rehash the whole 23 argument. I think the record will be clear.
24 MR. DIGNAN: This is why I want the ground, Your 25 Honor. If you deny a motion to not attach a rebuttable
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DONOVAN - CROSS 18000 gs 1 presumption with no ground given, I'm going to be up there r
U 2 in front of Judge Rosenthal and I'm going to hear three 3 grounds I never heard'down below.
4 I think he should articulate the grounds for the
$ motion and take the ruling of the Board so that it's clear 6 when we get up on appeal exactly what the Board's ruling 7 was.
8 MR. FLYNN: At this point it has not been 9 established that FEMA relied on Dr. Urbanik's input for the 10 finding on J-10-L.
11 MR. DIGNAN: And it is further not establish that 12 the witness doesn't have independent grounds. But that's 13 neither here nor there. I want the grounds of the motion 14 stated with the Board's permission so that when we go up 15 there I don't. hear for the first time that there was some 16 ground underlying a general motion that the Board never got 17 a crack at.
18 MR. TRAFICONTE: Why don't we come back to my 19 motion. Let me explore the --
20 MR. DIGNAN: Are you withdrawing the motion?
21 JUDGE SMITH: It's withdrawn for now.
22 MR. DIGNAN: Withdrawn for noir.
23 BY MR. TRAFICONTE:
24 Q Now you have testified, Mr. Donovan, that you had 25 taken some kind of a course that's offered by KLD in the use
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I DONOVAN - CROSS 18001 fg 1 of the I-DYNEV model, i 1 2 Is that correct?
3 A (Donovan) That's correct.
4 Q When was that course or courses? When did you 5 take that?
6 A (Donovan) 1983. j 7 Q Have you taken any courses from KLD since 19837 8 A (Donovan) No , I have not.
9 Q Now you referred to this model as DYNEV, did you 10 not?
11 Wasn't your testimony a few minutes ago that it 12 was the DYNEV model?
13 A (Donovan) I said that KLD started out with DYNEV.
14 FEMA bought the right to use the model and called it 15 I-DYNEV. FEMA contracted with KLD to make certain changes 16 to the model and it's referred to in FEMA's vernacular as 17 I-DYNEV.
18 Also FEMA teaches courses in evacuation and I have 19 been identified and qualified as an instructor. However, I 20 have not taught a course on the use of this model for 21 developing evacuation plans.
22 O When were you qualified?
23 A (Donovan) In 1985.
24 Q Now, the DYNEV model and the I-DYNEV model are not 25 necessarily the same thing, are they?
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DONOVAN - CROSS 18002 1 A (Donovan) I'm not qualified to answer that 2 question. The model I'm familiar with is I-DYNEV which 3 basically we develop some user. friendly forms for data input 4 and for data output.
5 0 When you were trained in 1983 by KLD, Mr. Donovan, 6 war, it the DYNEV model or the I-DYNEV model that you were 7 trained at?
8 A (Donovan) DYNEV.
9 Q DYNEV. But your testimony a minute ago was that 10 you considered yourself an expert in the I-DYNEV model?
11 A (Donovan) Because since my use of the model has 12 been as it has migrated and been revised.
13 Q Have you been trained by KLD in the revisions?
L 14 A (Donovan) Yes.
j 15 Q So you have been trained since 1983 by KLD?
16 A (Donovan) In the use. I was the technical 17 assistance officer to the contractor and it was integrating 18 the software on FEMA's computer. And so I was used to 19 verify that the model would produce results that were 20 meaningful and accurate.
21 Q I'm not sure that answer was responsive. Have you 1
l 22 been trained by KLD Associates since 1983 in the newer j l l 23 versions of the DYNEV now called I-DYNEV model?
l 24 A (Donovan) The answer is, yes.
25 Q Is that what you just described as being
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DONOVAN - CROSS- 18003
.rg- 1 associated with the consultant for FEMA?
O 2 A (Donovan) Yes.
3 Q And when was that?
4 A (Donovan) The integration occurred in '84 and '85 5 as we upgraded the model.
6 Q Has the model been changed as far as you know 1 7 since 1984 '857 8 A (Dcnovan) You're asking all kinds of software 9 questions. I believe the basic algorithm that drives the 10 model has not been changed. So I've tried to indicate, we 11 try to make it more user friendly so people with less 12 computer skills in terms of software application can use the 13 model. So we have been putting management forms on the
["'i 14 front end and on the back end of the model. And 1 have been V
15 involved in those processes.
16 So I believe the basic model, the algorithm that 17 it uses has not been changed but the software packages on 18 the front end and on the back end for model'results and 19 model input have been changed.
20 Q Now, Mr. Donovan, would you describe for me the 21 process that you engaged in when first provided a copy of i
22 Volume 67 23 And just so the record is clear I'm going to refer 24 to the ETE study that is loosely associated with Applicants' 25 Exhibit 42 as the ETE study of Volume 6.
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DONOVAN - CROSS 18004
(~g i Do you know what I'm talking about when I refer to 2 Volume 67 3 A (Donovan) Yes, I do.
4 JUDGE SMITH: What are you talking about? What's 5 its title?
6 MR. TRAFICONTE: Well, it is Volume 6 of the New 7 Hampshire plan.
8 JUDGE SMITH: How does it get 42 here?
9 MR. TRAFICONTE: Applicants' Exhibit 42 in this 10 proceeding is the SPMC. It is the 10 volume Massachusetts 11 plan.
32 JUDGE SMITH: Right.
13 MR. TRAFICONTE: And Mr. Dignan will surely
()
V 14 correct me if I'm wrong, it makes reference to -- the SPMC 15 makes re.farence to the ETE study that is Volume 6 of the New 16 Hampshire plan.
17 JUDGE SMITH: Which is, has been, and remains 18 Applicants' Exhibit 5 in this proceeding?
19 MR. TRAFICONTE: That's fine, I'll use Exhibit 5.
20 I wasn't sure I knew the number.
21 BY MR. TRAFICONTE:
i 22 Q The question out to you, Mr. Donovan, is, can you l
23 describe to us the process that you used when you were first l
L l 24 handed Exhibit 5 in the cource of your review of that study 25 in making your finding that it is an adequate study?
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DONOVAN - CROSS 18005 7 ~g 1 MR. DIGNAN: So the record is clear. Your Honor, 2 we're starting down a road of calling Volume 6 all by itself 3 Exhibit 5 and it isn't. It is Volume 6 of Exhibit 5.
4 Exhibit 5 is the designation given to the whole NHRERP.
5 I don't mean to interrupt, Mr. Traficonte.
6 MR. TRAFICONTE: That's fine. I didn't know that.
7 I'll go back to calling it Volume 6 then just for clarity's 8 sake.
9 BY MR. TRAFICONTE:
10 Q volume 6 then would be the ETE study, Mr. Donovan.
11 MR. FLYNN: I ask for a point of clarification 12 here. Your question implies whether it was intentional or 13 not that Mr. Donovan was involved in the review of Volume'6
/"T 14 of Exhibit 5 from the time that it was submitted to FEMA.
15 His involvement with the SPMC started at some time 16 further down the road after the submission of the New 17 Hampshire plan to FEMA Region 1.
18 I'm not sure at what point in time your question 19 refers.
20 MF. TRJFICONTE: I thought it would be fairly 21 obvious, it would begin when he first began the review of 22 Volume 6, 23 MR. FLYNN: In connection with the review of the 24 SPMC7 7.5 {
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DONOVAN - CROSS 18006 ;
i f- 1 BY MR. TRAFICONTE:
I
\- 2 Mr. Donovan, were you involved in the review of Q
1 3 the New Hampshire plan?
4 A (Donovan) At what time?
5 Q Prior to -- well, during or at any time connected 6 to the litigation on the New Hampshire plan?
7 A (Donovan) From July 1st, 1988 I have been 8 responsible for the agency's position and review of the New 9 Hampshire plan. l 10 Q With regard to exercise matters?
11 A' (Donovan) Exercise and plan review.
12 O And plan review?
13 A (Donovan) Yes.
14 Q And that is from July of 19887
)
15 A (Donovan) June 1st, 1988 or thereabouts. I 16 believe June 3rd I was -- the exact date has alluded me. I 17 did not bring those files with me. But on June 3rd or 18 thereabouts I was made RAC Chairman for the whole Seabrook 19 site for plan review and exercise.
20 Q That's fine.
21 Let me put it to you this way. FEMA's position as 22 it was defended and attacked in this proceeding in the New 23 Itampshire proceeding before this Board, you were not 24 involved in any way in the formulation of FEMA's position on 25 the New Hampshire plan, were you?
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l DONOVAN - CROSS 18007 1 A (Donovan) You have asked two questions that I (3
v 2 take the answers differently.
t 3 In the board hearing on the New Hampshire plan, 4 FEMA provided responses to contentions. FEMA did not 5 present a finding. FEMA, since that Board hearing was 6 concluded, has presented a finding on the New Hampshire
- 7 plan. I am responsible for that finding that FEMA presented 8 on the New Hampshire plan.
9 In your case as a party to this proceeding you 10 keep addressing the issues as contentions. I am responsible 11 for FEMA's reports and I will attest and defend anything in 12 FEMA's report . That sometimes your contentions are 13 different than FEMA's reports.
{ A 14 And I will defend the rationale and the means that b 15 I arrived at for the' ratings as we apply the criteria 16 contained in 0654, Rev. 1 against New Hampshire or 0654, 17 Rev. 1, Supp. 1 against the SPMC.
18 Q All right, that's clarifying.
19 Let me go back and ask you the question that I was 20 trying to put to you apparently not very clearly.
21 At a certain point in time you were given, for the 22 first time, Volume 6, were you not?
23 A (Donovan) Yes.
24 Q When was that?
25 A (Donovan) Approximately February of 1988.
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I DONOVAN - CROSS 18008-1 Q Were you given_that Volume 6 because it is 2 associated with Applicants' Exhibit 42 of the SPMC?
3 A (Donovan) Yes, I was.
4 Q Were you given it or did you receive it as part of 5 your duties and responsibilities in reviewing the SPMC?
6 A (Donovan) Yes, I did.
7 Q And did you conduct a review of Volume 6 pursuant 8 to your review and evaluation of the SPMC?
9 A (Donovan) Yes, I did.
10 Q And you relied in doing so, I take it, on your 11 expertise with regard to the use in application of the 12 I-DYNEV model?
13 A (Donovan) Among others. Yes.
14 Q Among other models?
15 A (Donovan) No. There are things that we review 16 it for that you don't have to have knowledge of I-DYNEV in 17 order to see whether those issues are addressed properly in 18 the T2a.ffic Management Plan.
19 You have glossed over the issue that what you're 20 referrlng to as Volume 6 is a study. The study providos a 21 basis to develop a traffic management plan. It provides 7 22 basis to develop transit-dependant bus routes. It provides 23 a basis to develop means for access control and for traffic 24 control. And provides a basis for deterreining a philosophy i 25 and a strategy for removing traffic impediments. All of 1
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DONOVAN'- CROSS 18009 t
e' 1 those are end products of a study. The study unto itself is
( 2 just a basis.
3 And we reviewed the basis, what you're referring l
4 to as Volume 6, to see if the other plans and procedures 5 contained in SPMC were reflective of the philosophy in the 6 study presented.
7 Q If I can summarize your answer to that question.
8 Your review of Volume 6' touches on a series of 9 evaluation criteria that are set forth in NUREG-0654.
1 10 Is that correct?
11 A (Donovan) That's correct. i 12= MR. FLYNN: Excuse me, may I confer with my 13 witness for just a second?
14 JUDGE SMITH: Do you object?
(
15 MR. FLYNN: Just a second.
16 MR. TRAFICONTE: No , I don't care how long. It's 17 the conferr'ng. I guess you can go ahead and confer.
18 'he witness and counsel conferring.)-
19 20 i 21 22 23 24 l
25 ;
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i DONOVAN - CROSS 18010 1 BY MR. TRAFICONTE:
\- 2 Q Now is it a fair statement to say then that your 3 review of Volume 6 was pursuant to your analysis of the SPMC 4 with regard to the following evaluation criteria: J-10-I, 5 J-10-J, J-10-K, J-10-L? j I
6 Those four criteria, at least those four, involve
]
7 an assessment, do they not, of the ETE study?
8 A (Donovan) As part of my review. The review was 9 not just based on that study.
10 Q No, exactly. That was the intention I was trying 11 to draw, too. I'm not trying to tie you down to say that 12 the only thing that you're evaluating with regard to those 13 criteria is the study. But one component part of what you
/~ 14 are affirmatively evaluating is the ETE study for those four b) 15 criteria, is it not?
16 A (Donovan) Evaluating the procedures to see if 17 they are consistent with the basis that was offered. The 18 basis that was offered was the Volume 6 ETE study.
19 Q All right, this is where I'm losing you. Your 20 answer is not clear.
21 You are evaluating what against what?
{
22 A (Donovan) We're evaluating the SPMC plan and 23 procedures against the criteria in 0654.
I 24 Q Right. And I'm focusing on these specific four 25 criteria.
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DONOVAN - CROSS 18011 1 And is it your testimony that in order to coinluct 2 a full, defensible review and evaluation for those criteria 3 FEMA reviews the ETE study, is that --
l 4 A (Donovan) That's correct.
5 Q Okay. And you did that?
6 A (Donovan) Yes, I did.
7 Q Now, what was the scope of your review of Volume 8 6? What did you do?
9 A (Donovan) I did a lot of things. Where do you 10 want me to start? How detailed do you want me to go, or do 11 you want --
12 Q Well, when you were instructed by KLD in the 13 mysteries of I-DYNEV, as T. think of it, were you instructed
/'"i 14 as to how to evaluate an application of the I-DYNEV model to V
15 a specific site?
16 A (Donovan) No, my instructions was how to use the 17 model to develop an evacuation plan.
18 Q Well, do those instructions by implication involve 19 how to use the model to generate an accurate application?
20 % (Donovar.) I don't know how you define " accurate",
21 but ti. e are certain assumptions that one makes and then 22 there are methodologies for loading the traffic. And the 23 model can develop an optimum olan or identify traffic flow 24 patterns that may need some addressing. And so from that 25 aspect the model can be used to develop an optimum plan.
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DONOVAN - CROSS 18012 1 So reviewed the outputs.
7.
2 Q Yes, the model can be used to generate an optimum 3 ETE study; is that correct?
4 A (Donovan) No.
5 0 I'm sorry.
6 A (Donovan) You keep referring -- I don't know how 7 you want to define an ETE study.
8 An ETE study is -- as you know, Volume 6 9 represents different scenarios and --
10 Q What sort -- I'm sorry, go ahead.
11 A (Donovan) And contains assumptions for these 12 different scenarios.
13 Q Let's work with the following definition for the 14' purposes of these questions. Let's label an ETE study as 15 having at least two parts, two relevant parts. It has a 16 traffic management plan that involves reconfiguration in 17 some fashion of specific, site-specific intersections and 18 traffic ways. And in addition to the traffic management 19 plan, by application of the model, it generates a series of ,
20 ETEs representing the time for evacuation across a range of
} 21 parameters.
l l
l 22 Is that a fair summary of what your understanding 23 of an ETE study is? l 24 A (Dono'ran) No. We disagree with that 25 interpretation.
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DONOVAN - CROSS 18013 g-~g 1 Q All right. Would you add something to it? Take
'O 2 something'away?
3 A (Donovan) First of all, let's go back to the 4 basis. Appendix 4 of 0654 defines a parameter for 5 performing a dynamic evacuation analysis. And it says you i 6 have got to take the road networks that exist -- the traffic 7 capabilities of the road networks; the method of traffic 8 control that exists day to day, whether they be yield signs, 9 stop signs, traffic lights. Then you superimpose upon that 10 your traffic.
11 And as you know, DYNEV or I-DYNEV counts cars or 12 vehicles. It doesn't count people. It counts vehicles.
13 You superimpose these vehicles and nodes. And the nodes 14 represent where those vehicles would exist. And then the
)
[
15 model tells you, depending on what you direct the model to 16 do, you can direct the model to route this traffic out of 17 this defined area to exit points on specific routes, or you 18 can allow the model to give you the optimum that the model 19 would choose based an the road network and the traffic 20 loading on sub-segments of the road network.
21 So it produces idealized, if you chose to go into 22 the optimum mode of using the model f idealized evacuation 23 routes out. It does not give you a traffic management 24 plan.
25 The traffic management plan has to be created by
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DONOVAN - CROSS 18014 rN 1 people elsewhere who look at the model and look at where
( )
2 there are road impedances indicated either by traffic load 3 criteria, and the model has certain number that it uses. Or 4 if you go into the visual mode of the model, it will give 5 you a visual display where traffic may back up at certain 6 intersections. But the development of a traffic management 7 plan is a separate project onto itself. The running of the 8 model does not create a traffic management plan.
9 0 I couldn't agree with you more, but the focus of 10 my question was that the ETE study that is at issue here 11 involves these two parts, does it not?
12 It involves a traffic management plan very much in 13 the way that I understand your answer to describe it I (~)
V 14 involving specific intersections and load capacities, the 15 traffic management plan and a computer modeling of the 16 reconfigure evacuation network that produces as output 17 estimated times; does it not?
18 A (Donovan) Yes, the model produces estimated 19 times. But the traffic management plan for Seabrook is not 20 in --
21 Q Okay, is that what you -- ]
22 A (Donovan) -- Volume 6.
)
23 Q All right, I stand corrected, i f 24 A (Donovan) The traffic management plan is a l
25 eeparate appendix of the SPMC. And the traffic management ]
i f
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DONOVAN - CROSS 18015 fr- 1 plan was developed independently of the model's execution.
" 2 MR. FLYNN: Excuse me. Could I remind Mr.
3 Traficonte that he was interrupting the witness?
4 MR. TRAFICONTE: I apologize for that.
5 BY MR. TRAFICONTE:
6 Q Now let's take a look for a moment at evaluation 7 criterion J-10-I. The over-arching, is it called standard, i 8 is that the word? What is J-10, a standard?
9 A (Donovan) Planning standard. J is a standard.
10 Planning standard J-10-I is a criterion.
11 Q I.see. J-10 is a criterion, and all the letters 12 are criterion.
13 J-10-I states that there are to be projected 14 traffic capacities of evacuation routes under emergency j
{
15 conditions.
16 That's correct, is it not?
17 A (Donovan) Yes, that's correct. But to put it in 18 context, I would like to address what J -- the full impact 19 is J-10 and J-10-I. It says the offsite response 20 organization's plans implement protective measurements for 21 the plume exposure pathway shall include projected 22 traffic --
23 Q Yes.
24 A (Donovan) -- capab!.lities of ovacuation routes 25 under emergency conditions- And that is the criterion that I
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I DONOVAN - CROSS 18016
, 1 we reviewed.
b 2 Q And you reviewed the --
3 A (Donovan) Our statement appears -- I do not have 4 a set of the global set that you have, so I apologize to the 1
5 Board. But it appears in page 66 of my report, and the 6 statements contained there that the ETE study does contain 7 projected traffic capabilities of evacuation routes under 8 emergency conditions.
9 Q Yes.
10 A (Donovan) It also contains them under normal 11 conditions and in emergency conditions.
12 MR. DIGNAN: Let the record reflect it's global 13 page 85 of Applicants' Exhibit 43 (c) the witness referred
/ 14 to.
O) 15 BY MR. TRAFICONTE:
16 Q All right. So for purposes of forming your 17 judgment of adequacy as to J-10-I, you reviewed the ETE 18 study?
19 A (.3 onovan) That's correct.
20 Q Did you make any determination that the projected 21 traffic capacities set forth in that study are accurate?
22 A (Donovan) I reviewed the road networks and the 23 assumptions for the capabilities under emergency conditions 24 and assumed those assumptions were accurate.
25 Q You assumed --
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DONOVAN - CROSS 18017 p 1 A (Donovan) And reasonable.
2 Q You assumed that what the ETE study said as to the 3 projected traffic capacities are accurate.
4 A (Donovan) And reasonable.
5 There is, as you know, says what the capability is 6 and then it has an assumption under emergency conditions we 7 will reduce the capability by a percentage.
8 Q I'm not talking about the reduction. I'm talking 9 about the initial statement of what the capacities of the 10 network are.
11 I understand your testimony to be that, with 12 regard to finding adequacy here as part of your review of 13 that study, you took the representations in the study as to 14 traffic capacities as accurate.
)
15 MR. FLYNN: Excuse me. The question refers to 16 traffic capacities under normal conditions; your question, 17 John?
i 18 MR. TRAFICONTE: Yes. I 19 THE WITNESS: (Donovan) I said I assumed the 20 assumptions as the criterion calls for under emergency 21 conditions that they were accurate and reasonable.
22 BY MR. TRAFICONTE:
23 Q Did you do any independent check on whether the
)
24 study was an accurate reflecting of the evacuation network ]
l 25 out in the EPZ? j i
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DONOVAN - CROSS 18018 f-s 1 A (Donovan) The study identifies freeways,
.t 2 arterials, and urban and suburban roads. And based on 3 assumptions of traffic capabilities for those road networks, 4 they were reasonable to other estimates. And all traffic 5 engineers-would address the capability of a certain stretch 6 of highway as being vehicles per hour.
.7 Q I think the gyestion really was more direct and 8 probably could be answered yes or no.
9 Did you do any independent check to check what was 10 represented in the study against what the actual traffic 11 capacities out in the EPZ are?
12 Did you do any independent check, you personally, 13 did you do any independent checking?
() 14 15 A '(Donovan) I drove all evacuation routes identified in the evacuation plan.
16 Q Was your purpose in so -- when did you do-that, 17 Mr. Donovan?
18 A (Donovan) I did it over a period of months, but 19 starting in February of 1988.
20 Q You drove all evacuation routes identified --
21 A (Donovan) The primary evacuation routes --
22 Q I'm sorry, just let me finish.
23 From what location to what location are you making l
- 2. 4 reference to?
25 A (Donovan) The SPMC identifies certain evacuation )
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DONOVAN - CROSS 18019 1 routes.
2 Q Maybe we are just missing each other on what you 3 mean by an evacuation route. I'm thinking that means that 4 you go from one place to another. And, of course, there 5 would be almost an infinity of evacuation routes understood 6 in that fashion.
7 A (Donovan) No. The SPMC directs traffic -- the 8 public education document in the plan identifies key 9 evacuation routes and it identifies feeder roads to those 10 key evacuation routes.
11 Q Okay, that's fine.
12 So we're not talking about the feeder roads.
13 We're talking about the evacuation routes.
/ 14 A (Donovan) Right.
b) 15 Q Okay. And those you drove?
16 A (Donovan) Yes.
17 Q How many are there, by the way?
18 A (Donovan) I believe there are four, four major.
19 I'd be happy to get out a map and show them to you if you 20 want.
21 Q But less than 20. It's less than 10, right?
22 A (Donovan) For the SPMC portion of the plan, yes.
23 Q Did you examine any intersections that are 24 described in the traffic management plan associated 25 with -- which I believe is Appendix J of Applicants'
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DONOVAN - CROSS 18020
_gs 1 Exhibit 42 -- did you examine against the traffic I'-,) 2 intersection diagrams?
3 Did you go out in the EPZ and look at the actual 4 intersections?
5 A (Donovan) Yes, I did.
6 Q How many of the intersections did you examine?
7 A (Donovan) The traffic management manual 8 identifies 55 locations that are either access control 9 points or traffic control points. We looked at all of them.
\
10 Q And you say "we". You and somebody else?
11 A (Donovan) Yes.
12 Q Who was that?
13 A (Donovan) Well, I had reveral efforts. I looked
~N 14 at the key ones myself. I had, as you know, during the (b 15 exercise evaluators look at all 55 locations.
16 Q Was your site visit in this regard, were you 17 making a judgment that the diagram was, from a traffic 18 engineering perspective, a good use or reconfiguration of a l 19 certain intersection?
20 A (Donovan) Not from a traffic engineering 21 perspective. From the perspective of a person who would be 22 assigned to go to that intersection or location and 23 establish either an access control point or a traffic 24 control point.
25 Q All right. Were you making a determination by the O Heritage Reporting Corporation (202) 628-4888
i DONOVAN - CROSS 18021 I
-~ 1 site visit or any other way that the projected traffic
\- 2 capacities of the routes as represented in the study were 3 accurate? l 4 Was that a determination that you were testing by 5 going out and'looking?
I 6 A (Donovan) I'm having trouble with your definition j 7 of " accurate".
8 The criterion says are the traffic capabilities of 9 evacuation routes under emergency conditions identified and 10 projected.
11 You are obviously familiar with the report. The 12 report says that the capabilities of a given segment of 13 highway are reduced by a certain percent just because we 14 assume it's an emergency. Furthermore, they are reduced by
(~)}
\.
f 15 another percent in the event of inclement weather.
16 And so, as I said, those estimations under the 17 emergency conditions we looked at to be reasonable. It 18 doesn't say anywhere that they are accurate. The criterion 19 review says do they contain estimated capabilities.
20 And cince the ETE study took reductions from what 21 are considered to be standard capabilities and standard ,
22 aogments of urban roads, freeways and arterials, we assumed 23 that those estimates were reasonable.
l 24 Q But you didn't independently form the judgment 25 that they were accurate.
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DONOVAN - CROSS 18022-r- 1 MR. FLYNN: I object, because the question isn't V 2 clear. The witness has been trying to explain that the 3 projections have two elements in them. The first element is 4 the identification of the capacity under normal conditions.
5 The second element is the reductions for emergency 6 conditions and for weather conditions. A projection is a 7 projection. You can't tell if the projection is accurate 8 until the event occurs.
9 MR. TRAFICONTE: Well, Mr. Flynn, that actually 10' isn't the focus of the question. I understand --
11 MR. FLYNN: Well, that was my point. The question 12 isn't clear.
13 MR. TRAFICONTE: I understand there are reduction 14 factors applied.
15 MR. FLYNN: You are asking if the projection is 16 accurate, and he is trying to explain that that is 17 inappropriate.
18 MR. TRAFICONTE: Okay.
19 BY MR. TRAFICONTE:
20 Q Mr. Donovan, the projection factor that's applied 21 is applied to a certain capacity, is it not?
22 A (Donovan) Yes, it is.
23 Q Now let's focus on that capacity, the initial 24 capacity that is then reduced by a reduction factor, okay?
25 Did you determine whether the initial capacities
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DONOVAN - CROSS 18023 rx 1 of the roadways is accurate by in some fashion testing or 1
'Q 2 checking to see if they accurately describe the capacities 3 of the roadway in the EPZ7
- 4. MR. FLYNN: Under normal conditions.
5 MR. TRAFICONTE: Yes.
(
6 THE WITNESS: (Donovan) Yes, I have problems with 7 your word " accurately".
8 I looked at the segments to see if "an arterial 9 segment looked like an arterial segment", if a freeway 10 section looked liked like a ."reeway section, and if a feeder 11 road looked like a feeder road with 25 mile an hour, 30 mile l 12 an hour speed limits.
13 And based on that, based on the average buffering
()
V 14 distance that someone would preclude for traffic to be on 15 that segment of a road for either impeded flow or unimpeded 16 flow, we assumed that the capabilities and capacities were 17 reasonable.
18 JUDGE SMITH: You don't like the word " accurate" 19 and I can appreciate that. But the word " reasonable" 20 conveys no meaning to me at all in that context.
21 Reasonable against what measure?
22 THE WITNESS: (Donovan) Well, the study makes an 23 estimate of the capability of a given segment of highway.
24 And the model, the execution of the model is that you define 25 the road segments. When you are using a dynamic model like
)
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DONOVAN - CROSS 18024 1 I-DYNEV, this issue is less important than if they were fT 2 using a static approach in determining evacuation time 3 estimates, because the DYNEV model assumes when you post the 4 posted speed limit and whether you identify the segment of 5 the road as having one lane or two lanes, and whether you 6 identify as under signal control or sign control at a given 7 intersection, the model itself and the parameters built into 8 the model determine how many vehicles can be put on a given 9 segment.
10 In other words, when you enter input into I-DYNEV, 11 you do not enter what's the capability for this segment of 12 the highway. You enter whether there is one lane or two 13 lanes or three lanes in one direction, or four lanes; and
() 14 15 you enter the posted speed limit. And then the model defines by its built-in parameters how many vehicles can be 16 put on that segment of highway at that posted speed limit.
17 And then if you back down the impedance, the 18 impedance to the traffic gets backed down because of 19 congestion or you reach maximum capacity, the model then ,
20 starts to automatically reduce the number of vehicles, or it 21 will increase the number of vehicles on a given segment, but 22 it reduces their average speed.
23 So that the question that he's asking me is not 24 germane to the execution of the model, because the model has 25 these parameters built into it. He's asking me is it
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DONOVAN - CROSS 18025 gs 1 accurate, and I'm not going to get into an argument from a
)
'~' 2 traffic engineering point of view can this segment of road 3 at 30 miles an hour, hold X cars. I guess that's how I'm 4 interpreting his question.
5 MR. TRAFICONTE: That's how my question was 6 intended.
7 BY MR. TRAFICONTE:
8 Q You know there is testimony -- there is dispute on 9 that? You know that in this litigation we' ve disputed those 10 matters. You are familiar with that?
11 A (Donovan) No, I don't know that.
12 Q Oh, okay.
13 Mr. Donovan, do you remember --
()
V 14 tdR . DIGNAN: You disputed normal traffic capacity?
15 MR. TRAFICONTE: Well, I meant we disputed 16 traffic --
17 MR. DIGNAN: I thought everybody took the same 18 numbers out of a highway manual and the fight was over the 19 reduction factors.
20 Now, aren't I accurate? Aren't I accurate on 21 that?
22 MR. TRAFICONTE: That might be right.
23 MR. DIGNAN: All right, there is no dispute in 24 this case as to what the normal capacity of these roads is.
25 JUDGE SMITH: In any event, the witness does not
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DONOVAN - CROSS 18026 fs 1 have to know that, so let's move along.
-' 2 MR. DIGNAN: Your Honor, I thought we had a rule 3 on photographers. I don' t know if it's bothering the 4 witness to have a camera clicking in his face, but it's 5 bothering me.
6 JUDGE SMITH: All right, that's all you need to 7 say.
8 Would you go some place else, please?
9 THE PHOTOGRAPHER: I wasn't aware of any rules.
10 JUDGE SMITH: Did you get all you needed?
11 THE PHOTOGRAPHER: Yes.
1 12 JUDGE SMITH: All right.
13 BY MR. TRAFICONTE:
/~N 14 Q Mr. Donovan, you recall, I'm sure as happily as I U 15 do, that you had your deposition taken in this matter on 16 four different occasions.
17 Do you recall that you were deposed on November 18 10, 19887 19 A (Donovan) Yes.
20 Q Do you have a copy of the transcript of that 21 deposition available to you, sir?
22 A (Donov6n) I do.
23 0 Okay. I would like to ask you to tarn to page 24 105, 25 MR. FLYNN: Is this being used for impeachment?
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DONOVAN - CROSS 18027 f s 1 MR. TRAFICONTE: Yes.
6 2 BY MR. TRAFICONTE: 3 1
3 Q I would like you to turn to page 105. I would 4 like to --
5 MR. DIGNAN: Mr. Traficonte, would you wait a 6 minute, please?
7 MR. TRAFICONTE: Oh, I'm sorry. Sure.
8 JUDGE SMITH: Let's take our mid-morning break 9 while people are catching up.
10 MR. TRAFICONTE: Sure.
11 JUDGE SMITH: Fifteen minutes.
12 (Whereupon, a recess was taken.)
13 JUDGE SMITH: We're on the record.
14 You may proceed, Mr. Traficonte.
15 MR. TRAFICONTE: Thank you, Your Honor.
16 BY MR. TRAFICONTE:
17 Q Mr. Donovan, in the I-DYNEV model that we have 18 been discussing, it's fair to say that there are certain 19 inputs that need to be plugged into the model to permit it 20 to generate ETEs.
21 Is that a fair statement?
22 A (Donovan) Yes, th?.t is a fair statement.
23 0 I want to identify some of these inputs and 24 see -
25 MR. DIGNAN: Your Honor, before this line is Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18028 s 1 pursued, my understanding of the NHRERP decision, paragraph t
2 922, and I'm even quoting ;n om it. "We conclude that 3 I-DYNEV is' appropriate for use in determining ETEs for 4 nuclear power plants."
5 Isn't the question of whether I-DYNEV is an 6 appropriate model res judicata in this matter?
7 JUDGE SMITH: It seems to be.
8 MR. TRAFICONTE: Your Honor, I'm not challenging 9 in this line of questioning. My intent is not t'o press on 10 the use or appropriateness of the use of I-DYNEV. The 11 intent of the cross, and I have no hesitation telling 12 counsel what it is, is to determine exactly what degree of 13 verification and checking FEMA did as to the inputs used in
( 14 the application of the model when FEMA reached the 15 detcrmlnation that the Volume 6 study is accurate. I'm just 16 testing the nature of their finding. It seems perfectly 17 reasorable to do that.
18 MR. FLYNN: I think that raises the point that Mr.
15 Dignan made before we took the break. And that is, which 20 part -- if you're challenging the inputs, that is, how many 21 lanes the artery roads have or whether they are under signal 22 control or not, that all goes to the question of road 23 cspacity under normal conditions about which there is no 24 dispute. So the line is irrelevant.
25 MR. TRAFICONTE: I don't follow that, Your Honor.
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DONOVAN -' CROSS 18029
'l- MR. FLYNN: What is it'that you are asking to be 2 verified? The configuration of the roads?
3 MR. TRAFICONTE: The inputs that then generated 4 the ETE numbers that you verified.
5 MR. FLYNN: Which Mr. Donovan has identified a few 6 moments ago, how many lanes the roads have.
- 7 MR. TRAFICONTE: How many vehicles would be 8- evacuated.
9 MR. FLYNN: That's not an input.
10 Oh, I'm sorry.
11 MR. TRAFICONTE: Vehicle population is not an 12 input?
13 MR. FLYNN: Excuse me. I spoke too soon.
/' 14 The point of the line then is whether we verified b) 15 the vehicle population?
16 JUDGE SMITH: Why don't you wait.
17 MR. TRAFICONTE: Your Honor, I object. Exactly.
18 I think that the cross is not --
19 JUDGE SMITH: All right, just go on back to Mr.
20 Dignan's point. I should have been more attentive, because 21 the question was inputs right off the bat. We're not 22 talking about the validity of the model. We're talking 23 about the use of it.
24 So that objection is overruled.
25 MR. DIGNAN: I gather from what Mr. Traficonte
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DONOVAN - CROSS 18030
,- 1 said his line is not. I had heard the question as going at 2 the model, but I was in error.
3 BY MR. TRAFICONTE:
4 Q All right. Now, Mr. Donovan, let me go back to 5 the question that we were at.
6 You understand from your experience with I-DYNEV 7 that there are inputs that need to be put into the model to 8 generate an ETE study; is that correct?
9 A (Donovan) Yes, I understand there are inputs.
10 C And would you agree with me that the vehicle 11 population counts that are inputted are an important part of 12 the output?
13 MR. FLYNN: Excuse me. The vehicle population is
- [ 14 not an output. It's an input.
15 JUDGE SMITH,: It's crystal clear. I understand 16 the question. I think Mr. Donovan understands it.
17 Do you understand it,?
18 THE WITNESS: (Donovan) Yes, I do.
19 The census data expressed in vehicles at centroid 20 nodes is an important part of the input to the model.
21 BY MR. TRAFICONTE:
22 Q All right. And to put it in the simplest terms, 23 if you plug in more cars, you're going to get a longer ETE.
24 And if you plug in less cars, you are going to get a shorter 25 ETE.
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1
J DONOVAN - CROSS 18031 f 1 Is that correct?
2 A (Donovan) Not necessarily.
3 Q All right. Well, would you agree with me that if 4 you vary in any fashion that you can devise vehicle 5 population inputs, you may well impact on the ETE coming out 6 the other end?
7 Would you agree with that?
8 A (Donovan) That's a possibility.
9 Q Okay.
10 A (Donovan) I wouldn't agree if that is a flat 11 statement.
12 Q Well, are you familiar with the fact that in this 13 litigation, Mr. Donovan, we have litigated the question over
("'g 14 the appropriate number of vehicles that should be plugged I V into the I-DYNEV model for calculating the ETEs for the 15 16 Seabrook EPZ?
17 Are you familiar with that fact, that that has 18 been litigated?
19 A (Donovan) I read the Board's decision as of I
20 12-30-88, which addressed the Board's position on ETE and 1 l
21 the issue of vehicles.
22 Q Right. You formed your judgment as to the 23 adequacy of the ETE study at issue here will be before 24 12-31-88, did you not?
25 A (Donovan) You are misquoting and misconstruing my l
Reporting corporation j neritage
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DONOVAN - CROSS 18032 j-~ 1 position. I have -- 2 Q t haven't stated or -- 3 A (Donovan) Yes, you have. 4 Q -- even construed your position. 5 A (Donovan) You just said I formed -- 6 MR. FLYNN: Excuse me. 7 JUDGE SMITH: Now wait a minute. , I 8 THE WITNESS: (Donovan) You just said I 9 formed -- 10 JUDGE SMITH: Gentlemen. Now put a question to 11 the witness and proceed. 12 BY MR. TRAFICONTE: 13 Q You formed your judgment as to the adequacy 14 pursuant to the four evaluation criteria that we're 15 discussing. You formed your judgment as to the adequacy of 16 the SPMC well before 12-31-88, did you not? 17 A (Donovan) Yes, I did. 18 Q Okay. In forming that determination of the 19 adequacy as to those criteria, did you make any independent 20 assessment of the accuracy of the vehicle populations that 21 were being inputted into the study? 22 A (Donovan) No , I did not. 23 Q You did not believe that FEMA -- strike that. 24 You did not consider it part of your assessment 25 and review to verify the ETE study in that fashion, did you? I Heritage Reporting Corporation (202) 628-4888
a DONOVAN - CROSS 18033 1 A (Donovan) We reviewed against the four criteria 2 that you have previously enumerated: J-10-I, J-10-J, 3 J-10-K and J-10-L. None of those criteria address the ETE 4 study. 5 Q Mell, let's take a look at J-10-L for a moment, 6 Mr. Donovan, if I can find it. Here we go. 7 J-10-L requires, does it not, that there be time 8 estimates for evacuation of various sectors? That's a 9 requirement; is that correct? 10 A (Donovan) The standard says that the plan should 11 contain evacuation time estimates for various sectors. Yes, 12 it does. 13 Q Now can I assume, and maybe I should not be '~h 14 assuming, but can I assume that FEMA reads into that 15 language that the time estimates that appear in the plan are 16 accurate?
- 1. 7 I mean, I grant you that the word " accurate" is 18 not stated in the criterion. But is it imp 3ied and is it 19 your understanding that FEMA requires that the time 20 estimates be accurate?
21 MR. FLYNN: I renew my objection as to the 22 relevancy of the line of questioning. 23 JUDGE SMITH: Overruled. 24 MR. FLYNN: May I be heard, Your Honor? 25 JUDGE SMITH: All right. () Heritage Reporting Corporation (202) 628-4888
]
i { l i
, i i DONOVAN - CROSS 18034 1 1 time estimates may or may not be accurate because one of the i 2 major inputs is or is not accurate; that we didn't verify 3 that input, namely, the vehicle population. 4 Well, that has been litigated. The Board has made 5 a finding as to vehicle population. 6 Now, those numbers control whatever they are. The 7 only relevant issue would be whether the findings are 8 consistent with the assumptions in the evacuation time 1 9 estimates that Mr. Do'ovan reviewed. 10 The line or icestioning is going to, was our 11 process complete. And I submit if we know in retrospect 12 that the information was accurate, the outputs are going to 13 be accurate and that --
/~'\ 14 JUDGE SMITH: That may very well be a persuasive 15 argument. But you might as well just take your witness and 16 go on home if you are not going to allow the man to cross-17 examine him on the statements he has in the report.
18 I mean, it may very well be when you get all done 19 what you say is entirely correct. But we are not there yet. 20 What's the question? 21 MR. TRAFICONTE: I think the pending question, 22 Your Honor, is -- 23 JUDGE SMITH: All right. 24 Do you remember the question? 25 THE WITNESS: (Donovan) No , I don't. C Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS. 18035 q
-l 1 THE WITNESS: (Donovan) No , I don't.
O 2 JUDGE SMITH: All right. i l 1 3 THE WITNESS: (Donovan) Would you please repeat 4 it? 5 MR. TRAFICONTE: I would actually like the' l 6 reporter -- do we have that capacity? Can the reporter read 7 it back? 8 (Accordingly, the pending question was read back 9 by the court reporter.) 10 MR. DIGNAN: Your Honor, the objection, while I do 11 not join in the objection between the counsel, I do have an 12 objection on this basis. Again, my res judicata point. 13 Now that question clearly is attempting to test 34 the accuracy of the ETEs. There is a finding in the New [~T)
%)
15 Hampshire decision. It's at page 285 and 286, Paragraph 16 9.130. The Board concludes that, "In accordance with 17 10 CFR Part 50, Appendix E (IV.7) , Applicants have provided 18 an accurate analysis of the time required to evacuate the 19 Seabrook EPZ within the scope of the contentions of the 20 Interveners. And in particular with respect to evacuating 21 the population of New Hampshire beaches during the summer 22 weekends providing", and then there are two conditions: 23 That the respective findings modifying the ETEs by this 24 Board are incorporated in the ETEs provided by the ! 25 Applicants and the State of New Hampshire; and (2) that O) ( Heritage Reporting Corporation (202) 628-4888 ( - __------__x_ _ _ _ . - . . _ _ _ - _ - _ _ - - . -
\
DONOVAN - CROSS 18036
-~ 1 trips by returning commuters in dealing with that matter you 2 kept jurisdiction.
3 Now that being the case, I really don't understand 4 why we are entertaining cross-examination on "the accuracy 5 of the ETE" -- 6 JUDGE SMITH: Right. 7 MR. DIGNAN: -- because, first of all, the one 8 problem I'm having with the question is the witness, and 9 probably -- I hesitate to say this because in fairness to 10 Mr. Traficonte, " accurate" is the Board's word too, and it's ! 11 fair to him -- the witness is bothered by the word 12 " accurate". He likes the word " reasonable", and I suppose 13 that's tacause of all the things we discussed. ( ) 14 JUDGE SMITH: Well, we haven't had that out yet. 15 MR. DIGNAN: Yes. 16 JUDGE SMITH: And there is still no communication 17 between this Board member and the witness on that issue, and 18 other Board members have problems too. 19 MR. DIGNAN: Yes. But my point simply is it seems 20 to me that the accuracy of the ETEs in this case is a res 21 judicata matter now, with the exception of the matter that . 22 i:. panding before the Board in the form now of submissions 23 with respect to -- and that question is right at the 24 accuracy of the ETEs. 25 So my objection is only to that, as to whether we n Heritage Reporting Corporation ( (202) 628-4888
- - - - - - - --_------ ___ l
DONOVAN - CROSS 18037 l 1 agree that Mr. Donovan's report talks about ETEs. I don't
'\-' 2 join the objection you heard to my left. But I think we are 3 on a matter that's res judicata in this matter.
4 MR. TRAFICONTE: Your Honor, I'll just respond I 5 brictly, ord I now know I'm going to have to hear that 6 question back again. 7 I am almost tempted to give opposing counsel a 8 copy of my cross-examination plan. Let me make it 9 completely clear. I am pressing on the nature of the FEMA 10 review with the Interveners. They came in and found 11 everything hunky-dory. There is a rebuttable presumption, 12 and we want to press on it. 13 The way we are pressing on it right now and have 14 been for an hour or so is what is the nature of the FEMA
)
15 review: What does Mr. Donovan do when he makes the adequacy ) 16 finding as to these four criteria? What is the nature of i 17 the process? That's number one. 18 Number two: As a matter of fact, Mr. Dignan is 19 saying it's res judicata. That's puzzling, number one, 20 because the New Hampshire decision is still open on the 21 issue of ETEs. Number two, because you admitted Contentions I 22 1, 2 and 3 in this proceeding on the accuracy of the ETEs j 23 for the Massachusetts portion of the ETE. 24 JUDGE SMITH: That I just couldn't understand 25 sitting there 11stening to Mr. Dignan and have him look me () N Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18038 ! 1 sitting there listening to Mr. Dignan and have him look me 2 :traight in the face, make all that argument, and not once 3 allude to the fact that we are dealing with two states, two 4 ETEs.. And should I have said, oh, you are right, Mr. 5 Dignan, and then -- 6 MR. DIGNAN: No , Your Honor. I am fully aware the 7 contentions are in. But the problem is we're talking 8 here -- 9 MR. TRAFICONTE: They should not be? 10 MR., DIGNAN: No, no. I lost that argument. Yes, 11 I did think they should not be, but I've lost that. 12 MR. TRAFICONTE: But you are making it again. 13 MR. DIGNAN: No, I'm not. The finding that I'm 14 alluding to is the finding of general accuracy in terms of l 15 the methodology and appro.:ch that is common. 16 Now, my understanding of the argument that was 17 made to you and the contentions that got into this case were 18 insofar as ETEs were involved in certain areas of 19 Massachusetts. I believe there are contentions in about 20 special facility ETEs and whether they are needed and so 21 forth and so on. 22 But this is a genuine general question, as I heard i 23 it - perhaps I did mishear it -- a general question as to 24 whether he tested the accuracy of the assumptions and so
\
25 forth that went into that model, and I think that is res Heritage Reporting Corporation ( (202) 628-4888 l I
DONOVAN - CROSS 18039
- 's 1 judicata under that finding.
2 And I bring it mainly, and I know I am testing the 3 Board's patience, because if the Board rules no, I'll 4 understand the ruling and you won't hear from me again. 5 JUDGE SMITH: We're not going to rule until we 6 know what you are talking about. And we don't know what you 7 are talking about yet. 8 Now, number one, I never caught up with the 9 history of the. case which were told to me that the ETEs for 10 Massachusetts were set off separately. 11 MR. DIGNAN: I'm sorry, Your Honor. Were set 12 off? 13 JUDGE SMITH: You just read a finding from the 14 Board where the ETEs for New Hampshire EPZ are accurate if 15 they are modified in accordance with our decision. 16 MR. DIGNAN: Well, what the Board -- well. 17 HR. TRAFICONTE: Your Honor, might I just refer 18 the Board to JI-17 19 JI-1 says, and it is an issue in this case, that 20 the ETE study for Massachusetts is not accurate. 21 22 23 24 25 ( Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18040
,< g 1 MR. DIGNAN: Your Honor, I withdraw the objection.
2 (The Board conferring.) 3 MR. DIGNAN: Your Honor, I withdrew the objection 4 because I didn't think I had a document that I do have. So 5 I will stand on the objection. 6 The point I'm trying to make is perhaps best to 7 illustrate it by going back to the Board's ruling, and 8 apparently have not been making clearly, 9 The Memorandum and Order, Part 1 when the ETE 10 contentions got admitted. 11 JUDGE SMITH: What page? 12 MR. TRAFICONTE: Can you wait one second? 13 MR. DIGNAN: Yes. Pages 53 and 62 are what I'm I 14 looking at. What I'm going to go to first is 62 to ('~'} w-15 illustrate what I'm, at least, attempting to draw the l 16 distinction between. 17 If you recall when those contentions -- I'm sorry, 18 I'll desist until Mr. Traficonte has his page. 19 MR. TRAFICONTE: It will take n e 30 seconds. 20 (Pause) l 21 MR. TRAFICONTE: What page is it? 22 MR. DIGNAN: Pages 53 and 62. Let's start with 62 23 which I think will illustrate what I'm trying to say, and j 24 53. 25 If you recall when these contentions were O) ( Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18041-fs - 1 originally made and I think they were MAG 32 and 39, two of (
\- 2 them, we took the position that all of the ETEs had been 3 litigated in the New Hampshire case. And you in no 4 uncertain language told us that argument wasn't very helpful 5 because the Mass AG's point was that certain of the bases i
6 for the ETE in Massachusetts had changed. And therefore on j 1 7 that basis the contentions were admitted. 8 And I'm looking particularly at this language, 9 this is on 62, this is not responsive. This is after you 10 flattened my argument. 11 As the Attorney General replies, the ETEs 12 contained in the SPMC are not those contained in the NHRERP. 13 Many of the bases are specific to Massachusetts and the 14 SPMC. 15 Then on page 53 where you're discussing that other 16 contention you make note of the fact -- up.near the top of 17 the page -- faults the SPMC for using evacuation time 18 estimates that are said to be inconsistent with current 19 circumstances and conditions in the Massachusetts portion of 20 the Seabrook EPZ. 21 Now, my understanding of the ETE contentions that 22 got into this case, and we almost had stipulated out but 23 haven't, was on the basis that Massachusetts was saying, l 24 there are things unique in Massachusetts which make -- that ' l 25 haven't been accounted for in the ETE study overall. l neritage aeporting corporation ({]) (202) 628-4888 l I l
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DONOVAN - CROSS 18042 i
~
1 But the questioning that's going on here is not
~
2 designed, as I hear it and maybe the Board differs with me 3 on this, is banging away at the witness on the accuracy I 4 overall of the Volume 6 ETE, which is actually the New 5 Hampshire version in any event. And is testing on the 6 question of the ETE study. 7 This is not litigating what I understand the l 8 contentions are admitted on. I understand the Board has l 9 made a finding. The model is good. That the general 10 approach of the ETE is good and everything like that. 11 What the Board has left open for litigation is, 12 come in here and show us that there is something unique down 13 here in Massachusetts that was unaccounted for. I'] 14 JUDGE SMITH: That's right.
\_/ .
15 MR. DIGNAN: And I respectfully submit that this 16 line of questioning is not directed at that but rather is f 17 directed at reopening the whole question of the methodology 18 of the ETE in general. 19 And that is my reason for saying I think we're in 20 a res judicata area. Now if the Board's view is, no, you're 21 reading too much into the question, so be it. But that's 22 where I think these general questions of accuracy are 23 leading us. And I do not understand the Board to have 24 opened up the whole ETE methodology and the modeling. 25 JUDGE SMITH: That was never our intention. A Heritage Reporting Corporation (- ) (202) 628-4888
18043 DONOVAN - CROSS 1 Now the-problem that I have, as I sit here right 2 .now,-I-don't recall the factual basis for the contentions 3 that they' re aspects of the Massachusetts EPZ as to which 4 the.overall ETE may not apply. 5 I have'no. idea what the factual predicate is that 6 you' re talking about. So I'm talking in the abstract. 7 MR. TRAFICONTE: The factual bases.are partially 8 set forth in the bases to JI Nos. 1, 2 and 3. 9 The particular question I just put to him, for 10 example, on vehicle population is set forth at JI-2-B which 11 raises the issue of the number of cars that will flow 12 through the road. 13 JUDGE SMITH: JI you're talking too fast for 14 me.
)
15 MR. TRAFICONTE: I'm sorry. JI-2-B raises the-16 population issue, vehicle population issue. 17 Then D, for example -- Your Honor, the next page D 18 raises the issue of the traffic flow rates to specific 19 intersections. 20 JUDGE SMITH: Right. 21 MR. TRAFICONTE: But the more general point I 22 would make is, I come back to my process point, I can't for 23 the life of me see why I'm not permitted to ask questions 24 that are very general in scope that try to elicit the nature 25 of the FEMA review. i Heritage Reporting Corporation (202) 628-4888
E DONOVAN - CROSS 18044 l' MR. DIGNAN: Your Honor, taking a look at:these ) b '2 bases and again to review the bidding I thought got settled 3 the other day that where the contention had been rewritten 4 with new bases the. Board would look only to the bases that j i
-5 were in the memorandum the parties agreed to.
6 You will look at JI-2, and while I will go along 7 with the fact that A talks about orderly traffic flow, 8 adequacy planning, use traffic blockage. It doesn't have 9 the word Massachusetts. 10 You start down through them. ETEs are based on 11 incorrect assumptions concerning a number of cars that will 12 flow through the. roads, intersections and ramps in 13 Massachusetts. The ETEs fail to account for the delays that 14 result from the confusion among the public. That's a 15 general one. 16 Then the ETEs are based on the traffic management 17 plan and it goes right to Amesbury. And this is my point. 18 MR. TRAFICONTE: Read the next one. 19 MR. DIGNAN: ETEs are based on an under count of I 20 the number of vehicles evacuating from and through the 21 Massachusetts portion of the EPZ. 22 MR. TRAFICONTE: Right. 23 MR. DIGNAN: And this is my point. 24 MR. TRAFICONTE: So I can't ask him, for example, 25 whether he has verified whether an accurate number of Heritage Reporting Corporation (202) 628-4888 l
DONOVAN - CROSS 18045 i
-s 1 vehicles is plugged into the ETE for the SPMC.
2 MR. DIGNAN: For Massachusetts you can. 3 JUDGE SMITH: All right. 4 MR. DIGNAN: That's not the question you've done. 5- MR. TRAFICONTE: That's not the question I put? 6 MR. DIGNAN: No , it isn't. No, it is not the 7 question you put, Mr. Traficonte, and that's why I got into 8 this fight. 9 I fully understand your rights to litigate unique 10 massachusetts things and whether that means that this ETE is 11 wrong. 12 But my understanding of the prior ruling is that 13 the Board has basically found: (a) that the model is good- [) 14 in any event; and, (b) that the ETE methodology overall is j
%/ \
15 good. And all that's left to litigate in this picture now 16 is, is there some things down in Massachusetts that weren't i 17 accounted for, basically. . 16 JUDGE SMITH: Right. 1 i 19 MR. DIGNAN: And I object to the question in the ) 1 20 present form on that ground. 21 JUDGE SMITH: That is your's, too, Mr. Traficonte. 22 MR. TRAFICONTE: Your Honor, I'm going to -- 23 JUDGE SMITH: No. You got another point. But 24 let's don't argue all of our points parallel at once. We ; l 25 will come to your other point. j l () Heritage Reporting Corporation (202) 628-4888 l
4 DONOVAN - CROSS 18046 I 1 will come to your other point. (~ 2 But right now factually speaking --
'l 3- MR. TRAFICONTE: Fine.
4' JUDGE SMITH: -- we have found that the model is l I 5 all right. The methodology is all right. Even the vehicle 6 counts were all right. Other things were all right except 7 the reservation we made in our in,itial decision. And now we 8 have two or three bases which bring into question the ETEs 9 as for traffic flowing through certain points in 10 Massachusetts. 11 MR. TRAFICONTE: I will take it in steps, Your 12 Honor, 13 As to JI, I believe it was 2-D which is set -- I
/ 14 don't know which page we might have that at.
V) 15 MR. DIGNAN: 2-D is on page three of the memo. 16 JUDGE SMITH: Got that one. I'm looking at it. 17 MR. TRAFICONTE: I'm sorry, E. JI-2-E raises the 18 issue of an under count of the number of vehicles evacuating 19 from and through the Massachusetts portion of the EPZ. 20 So taking it in steps here is how I understand our 21 position. FEMA is going to have a rebuttable presumption 22 attached to their finding J-10-L that there is an adequate 23 time study done. That's to say that there is an adequate L 24 ETE study done. 25 We have put a contention in that has been admitted ( Heritage Reporting Corporation (202) 628-4888
t DONOVAN - CROSS 18047 gg 1 that there is not such a study done yet for Massachusetts. ('~') 2 One of the bases is that there is an under count of the 3 number of cars in and through Massachusetts. 4 The next step. I want to ask Mr. Donovan a series 5 of questions. The first one is, is it part of the FEMA 6 review -- this is why these two matters are connected. 7 JUDGE SMITH: Wait for testing. I'm going to come 8 Lack to testing. 9 MR. TRAFICONTE: I think they're connected, but 10 okay. 11 JUDGE SMITH: They may be. I understand the 12 logical connection but I just can't deal with everything all 13 at one time. [) \_/
- 1. MR. TRAFICONTE: That's fine. ,
15 Set aside the question of my testing or probing 16 the nature of his review. I should be permitted directly to 17 challenge FEMA's adequacy finding by trying to determine 18 whether Mr. Donovan asked himself this question. That's to 19 say, did Mr. Donovan determine or even attempt to determine 20 whether or not the numbers input into I-DYNEV for l l 21 Massachusetts are the accurate numbers. 22 If FEMA did not make the inquiry for perfectly 23 legitimate reasons of its own. I'm not -- again, don't 24 misunderstand my point. If that is not what FEMA is in the l 25 business to do when it reviews the plan the record will be O r
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< DONOVAN - CROSS 18048 g _
1 clear and there should be no presumption running to this t
' \-
2 issue. 3 It's an escapable logic. 4 JUDGE SMITH: This issue pointing to the basis? ] 5 MR. TRAFICONTE: Pointing to JI-2 and this 6 particular basis. But more generally indicating that when g 7 FEMA finds the ETE study adequate what it essentially is 8 telling us is that Mr. Donovan has identified a volume and 9 it has the title "ETE study" and he has opened it and he has 10 looked at it and it's.an ETE study. 11 JUDGE SMITH: Well, that may be. But as far as 12 FEMA's overall finding as to the ETEs on the Seabrook EPZ, 13 it doesn't matter what he's found because our decision is !
/) 14 the law of this case right now. ,
V That is the aspect of this 15 MR. TRAFICONTE: 16 discussion that I think is quite fruitful. I have no 17 problem with that. But there still are litigated issues on 18 which we have to -- 19 JUDGE SMITH: And that's what we want to focus on. 20 MR. TRAFICONTE: Yes. And I am. I am focusing on 21 them. 22 JUDGE SMITH: All right. 23 MR. TRAFICONTE: My point is, I should be 24 permitted to cross-examine the witness whose testimony is 25 going to get a rebuttable presumption on those very points. () Heritage Reporting Corporation (202) 628-4888 l 1
1 DONOVAN - CROSS 18049 1 JUDGE SMITH: Right. 2 MR. TRAFICONTE: Mr. Dignan paints everything. 3 FEMA comes in with a rebuttable presumption and it paints 4 the whole side of the house. If there's a contention on the 5 wall it gets painted. 6 I have to resist at every juncture and make sure 7 that there is no rebuttable presumpti'on as to a specific 8 issue. And here the issue is quite -- the issues are 9 clearly set forth in these JI contentions. I don't think 10 Mr. Donovan has done anything that would merit rebuttable 11 presumptive status as to those issues. 12 JUDGE SMITH: Well, we're going to find out. 13 MR. TRAFICONTE: So the objection was overruled. 1 g O 14 JUDGE SMITH: Yes. I don't think there was,any I \ i 15 merit to that objection to begin with. But we got into -- 16 the pending question is, do you not regard under that 17 standard -- where is that? , 18 Do you want to ask the question again. I 19 MR. TRAFICONTE: 'I predicted I was going to have 20 to ask that it be read back again. I think I can actually 21 remember it. 22 JUDGE SMITH: Can't you ask it again. 23 MR. TRAFICONTE: I'm going to just ask it again. 24 JUDGE SMITH: Right. 25 (Whereupon, the pending question was read back.) Heritage Reporting Corporation (202) 628-4888
1 DONOVAN - CROSS 18050 gg 1 JUDGE SMITH: Are you referring here to the SPMC, 2 or what? 3' MR. TRAFICONTE: I'm referring to the SPMC and the 4 ETE study that is its support and backup.
,5 JUDGE SMITH: Is there --
6 MR. TRAFICONTE: There is no independent ETE study 7 for the SPMC. 8 JUDGE SMITH: Right, for the SPMC. 9 MR. TRAFICONTE: Right. 10 JUDGE SMITH: All right, j 11 (The Board confers.) 12 JUDGE SMITH: There is nothing wrong with that 13 question. 14 Can you answer that?
)
15 THE WITNESS: (Donovan) Yes, I can. i 16 FEMA's position that the planning criteria that j 17 we're discussing addresses evacuation time estimates, the 18 purpose of an ETE study is to develop evacuation plans. The 19 time estimates are a byproduct of that plan. 20 In other words, the purpose of an ETE study is to 21 provide a basis for developing a traffic management plan, 22 access control points, traffic control points; to develop 23 evacuation plans for what we refer to as special facility 24 populations, populations that may reside in hospitals, 25 nursing homes and schools; to develop evacuation routes for () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18051 r- ; 1 the public that would be incorporated into the emergency 2 broadcast messages and into the publication material; and to 3 develop plans for implementing and dealing with potential 4 impediments to the evacuation of the public and special 5 facility populations. i 6 Our reading of " adequate" on J-10-L, which is on ! 7 page 68 and 69, should be construed by the Board that the 8 ETEs contained in the SPMC plan, which by the way are 9 different than the ETEs contained in Volume 6, are 10 reasonable estimates, in FEMA's opinion, of the time 11 required to evacuate the public, both the general public and 12 the special populations in the Massachusetts portion of the 13 Seabrook EPZ. 14 BY MR. TRAFICONTE: 15 Q Well, you say they are reasonable. Did you verify 16 that they are -- did you engage in a process of review to 17 test whether they are accurate or not? 18 A (Donovan) I attempted to answer that question, 19 sir. We looked at the assumptions that were contained in 20 volume 6. And those assumptions include vehicles 21 representing the public to be evacuated. By vehicle, they 22 assume an occupancy per vehicle, and they had assumptions 23 for non-high season, periods beyond May 15th to June, or to 24 September, and for seasons that the beaches would have high 25 volumes of public. () Heritage Reporting (202) 628-4888 Corporation
L DONOVAN - CROSS 18052 g-- 1 We reviewed both documents in the study. There l l \'-} 2 was a separate survey done by the Applicant where they-did 3 aerial photos of the beach area, and we looked at the aerial 4 photos and Ivoxed at the results of that survey which 5 indicated to us a census count that would be represented in l 6 vehicles. 7 So we looked at the vehicles that were put in the 8 centroid nodes and determined that they were an accurate 9 reflection of the population that we address in part of our 10 plan review that is representative of both the normal and 11 the high-occupancy season for the Seabrook - Massachusetts 12 portion of the plume EPZ. 13 The population is contained under J-9 of our plan () V 14 review which is on page 74 of 180. It gives a permanent 15 population column and it gives a permanent and transient 16 population column. 17 Q Could you just give me that page reference again? 18 I'm sorry. 19 A (Donovan) It's on page 74 of 180 of the exhibit. 20 And as we indicated in our write up of J-10-L that 21 an ETE study was performed for the entire plume EPZ, which 22 in this case is both the New Hampshire and the Seabrook 23 portion, of the Seabrook EPZ, the New Hampshire in the SPMC 24 or Massachusetts portion. 25 In the Massachusetts portion, the ETE study () Heritage Reporting Corporation (202) 628-4888
1 DONOVAN - CROSS 18053 g-sg 1 combines the communities into two groups. One called g 2 ERPA-B, which is approximately the. land area from two to 3 five miles from the reactor site in Massachusetts; and ERPA-I 4 E, which is the land area from five to 10 miles. And that
/
5 land area happens to encompass the six towns, or townships. 6 And that the Plan, the SPMC plan contains evacuation time 7 estimates for those two planning groups that are called 8 ERPAs for both normal, non-high season and high season for 9 regular weather and for inclement weather. 10 And as we state in our write up, that it contains 11 evacuation time estimates for these two ERPAs; and that 12 these two time estimates for these two plannings which are , 13 constrained over 12 different scenarios, I believe, that l 14 they have it for these groups of populations.
)
15 We identified in our review an issue that's 16 contained in the third paragraph under J-10-L, and I believe 17 we acknowledge and the licensee acknowledges that they are 18 going to incorporate in the next amendment the basis for 19 determining priority. 20 Again, in fact, my original statement, the purpose 21 from FEMA's perspective of doing an ETE study is to develop . I 22 evacuation plans to protect the general public and special 23 populations. And we looked -- this one review criterion 24 just says does the plan contain time estimates. And we say 25 the plan contains reasonable time estimates. Mr. Traficonte I () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18054 1 has been questioning me. We looked at the assumptions, f-s
2 we've looked at the traffic capabilities, and I think the 3 time estimates are reasonable. And that is how the Board 4 should interpret our reading of adequate.
5 Q Now, Mr. Donovan, do you recall that before we 6 broke I made reference to your deposition on November 10th? 7 A (Donovan) Yes, I do. 8 0 You were under oath on that day, were you not? 9 A (Donovan) Yes, I was. 10 Q I would like to draw your attention to page 104. 11 MR. TRAFICONTE: Your Honors, I'm going to read, 12 I'm sure you don't have it and probably don't want a copy of 13 this deposition transcript, but I'm going to read a series 14 of questions and answers at this point for purposes of --
}
15 MR. DIGNAN: Where are you starting, Mr. 16 Traficonte? 17 MR. TRAFICONTE: At the very bottom of page 104 of i 18 the November 10, 1988 deposition of Richard Donovan. 19 At the bottom, beginning on Jine 22, I put the 20 question to Mr. Donovan, "Is it your view that the present 21 ETE study as you understand it is adequate?" - 22 And there is an exchange of -- i i 23 MR. DIGNAN: I think the exchange should be read, ) 24 because it provides context for the following answer. 25 MR. TRAFICONTE: All right, I don't, but rather
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i L-DONOVAN - CROSS 18055 jew -1 than to belabor the point. "Mr. Flynn: That, I think, i 2 calls for a legal conclusion, particularly in view of the 3 fact that that was litigated -- I'll withdraw it." 4 "Mr. Traficonte: Just adequate in light of 5 the -- 6 "Mr. Flynn: I got ahead of myself." 7 I don't know what context this is exactly 8 providing. 9 "Mr. Flynn: I got ahead of myself. What was 10 litigated was the ETE for New Hampshire. Even though it's 11 the same study, it's a different issue. We're talking about 12 Massachusetts. 13 "Mr. Traficonte: Yes." (; 14 Okay, this is very similar to what's going on 15 today. 16 Question: "Do you remember the question?" 17 (Laughter) 18 THE WITNESS: (Donovan) I couldn't resist. 19 (Laughter) 20 MR. TRAFICONTE: That's fine. We need these 21 lighter moments. 22 Answer: "I remember the question. It is not my 23 position to determine the adequacy of the study. It's my 24 position to determine whether the review criterion has been 25 met. The review criterion asks for the development of () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18056
- 1 evacuation time estimates."
I 2 Question: "Now, it seems to me we've got an issue 3 here that we can cut through and leave and move on to other 4 things. 5 "Your review, FEMA's review of the ETE study is 6 not designed in any fashion to attest to the accuracy of 7 that study, is it?" 8 Answer: "That is correct. I point out for the 9 record if you examine Appendix 4, Appendix 4 says that such 10 studies should be adequate for a period of years, and they 11 only will need to be updated if there's been significant 12 changes in population of the road network." 13 I'm going to read, for the sake of the record I'm () \J 14 going to read a little set of colloquy that I don't think is 15 necessary, but it's not going to be that much extra and I 16 just don't want to have any dispute as to my selectively 17 reading from this deposition transcript. 18 Question: "Did you use the -- is an ETE study 19 adequate, in your view, in light of Appendix 4 -- lat me I 20 withdraw that. l 21 "In your opinion, does FEMA make a judgment that l 22 an ETE study is adequate in light of Appendix 4 without 23 regard to whether that ETE study is accurate?" l 24 Answer: "I believe I c:4swered your question 25 earlier. We reviewed the plans to see if they have l seritage aeporting corporation ([]) (202) 628-4888
~
t DONOVAN - CROSS- 18057 f- 1. evacuation time estimates. We do not review the source 2 product that produces those evacuation time estimates." 3 Question: "By a source product, you mean the 4 computer code, or software?" 5 Answer: "Whatever is referred to as the ETE 6 study." 7 Question: "So that would include the population 8 and vehicle counts, the estimates of roadway and 9 intersection capacities, the effectiveness of the traffic 10 management plan and the enhancement that are incorporated 11 into that plan, those siements that go into the ETE study 12 are not reviewed by FEMA. Is that a fair statement?" 13 Answer: "I believe that's a fair statement. l 14 Again, we review the criteria, the plan against the criteria
)
15 elements contained that address those issues. And the only 16 issue that is addressed is evacuation time estimates." 17 Just let me have a moment, and I think that may be 18 all I need. 19 (Pause) 20 MR. TRAFICONTE: I am going to -- and I know I'm 21 going to hear about it later, but I am going to skip from 22 where I ended. I'm going to read a question and answer on 23 page 108 beginning at line 12. l 24 Question: "Okay. Let's just make sure we're 25 completely clear. J-10-L reads: ' Time estimates for I () Heritage Reporting Corporation (202) 628-4888
.l DONOVAN - CROSS 18058 1 evacuation of various sectors and distances based on a O 2 dynamic analysis for the' plume exposure pathway emergency g
)
3 planning zone (See Appendix 4) . ' " 4 Answer: "That's a correct reference." 5 Question: "Is your understanding, then, that the 6 criterion of J-10-L is that there be such time estimates?" 7 Answer: "That's correct. You read J-10-L without 8 addressing.the preface that should be included to it, which 9 is J-10, 'The offsite response organization's plan to 10 implement protective measures for the plume exposure pathway 11 shall include', and then if you go onto J-10-L, ' time 12 estimates.' 13 "So the plan shall include time estimates. The 14 'SPMC includes time estimates." 15 Question: "So when you say that FEMA reviews the 16 SPMC against the criteria, you mean FEMA determines, or in 17 this instance you determine whether the SPMC has in it time 18 estimates?" 19 Answer: "That's correct." 20 Question: "So you didn't make, for example, just 21 one item in Appendix 4, having to do with populations, you 22 didn't look behind the study to determine whether there were 23 in it estimates of transient populations?" 24 Answer: "The plan itself contains estimates of 25 transient populations." Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18059
,-w 1 Question: "Did you determine whether or make any 2 inquiry as to whether those estimates are correct?"
3 BY MR. TRAFICONTE: 4 Q And I would actually like to put that question 5 directly to you right now, Mr. Donovan. 6 Did you make any determination as to whether those 7 populations are correct? 8 A (Donovan) If you would continue to read from my 9 transcription, you would have found the answer. However, 10 I'll give, for.the benefit of the Board, my answer to your 11 question. 12 When FEMA reviews a plan, we treat the plan as a 13 statement of facts and perspe'ctives. And we don't challenge 14 every item in a plan as whether it is a truism or truth. 15 In this particular case, we checked the population 16 estimates, I checked them against the New York Times Atlas 17 estimates of the counties and cities contained in 18 Massachusetts. 19 0 You checked what portion of the population 20 estimates against the New York Times Atlas? 31 A (Donovan) The permanent population estimates. 22 And as I answerad in my deposition, we looked at Volume 6, 23 which is the ETE study which goes through a methodology of 24 how they reached a conclusion of what the transient 25 population estimate was, and we considered that their O Heritage Reporting Corporation ( j (202) 628-4888
l DONOVAN - CROSS 18060 (s) 1 approach, including the aerial survey that they performed, Q e was a reasonable approach of estimating what the transient 3 population was. 4 Q Did you verify or check the transient population 5 estimates for accuracy? 6 A (Donovan) No, I did not. I checked the study, as 7 I just said. 8 MR. TRAFICONTE: Your Honor, at this point I would 9 renew the motion that the rebuttable presumption that 10 attaches to the FEMA finding of adequacy as to J-10-I 11 and -L, our motion that the rebuttable presumption -- I'm 12 searching for the right term -- that it be stricken 13 essentially. Not that the testimony be stricken, but that 14 the Board rule that no rebuttable presumption attaches to l (} 15 the FEMA finding of adequacy as to those matters and those 16 criteria, and then the corresponding contentions that raise 17 the issues loosely covered by those criteria. 18 JUDGE SMITH: Hearing no objection. 19 MR. DIGNAN: No-o-o. He's made a motion. I 20 assume I'm allowed to argue it. 21 JUDGE SMITH: Yes. 22 MR. DIGNAN: The rebuttable presumption attaches 23 to the FEMA finding. Mr. Traficonte is trying to make the 24 FEMA finding something it is not. And I have heard nothing 25 that varies with the FEMA finding. () Heritage Reporting Corporation (202) 628-4888
l v: DONOVAN - CROSS 18061 1 The FEMA finding is on the' criteria. The witness 2 has said the criteria have been met under the plan. 3 4 5'
'6 7
8 9 10 11 12 13 14 15 16 j 17 18 19 20' 21 22 l 23 24 l Heritage Reporting Corporation (202) 628-4888 l i
l , DONOVAN - CROSS 18062 1 MR. DIGNAN: Mr. Traficonte wants to get that
-s)
2 stricken so he can say the plan is inadequate. It doesn't 3 get it done. The criterion does not read the way he wishes !
4 it read. 5 MR. TRAFICONTE: The contention should not have 6 been admitted, Your Honor. 7 MR. DIGNAN: Well, I thought that, too. 8 (Laughter) 9 MR. DIGNAN: But the Board overruled that and 10 unlike you I don't reargue. 11 JUDGE SMITH: I have to admit, I have lost the 12 thread of the argument now. 11 MS. CHAN: Your Honor, the Staff would like to 14 note that what everyone seems to be characterizing as the
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15 requirements of NUREG-0654 are not indeed requirements. 16 They are guidance provided to help plan. And to pick out 17 one thing and say, well, it was not met and it's a 18 requirement is not really an accurate interpretation of the 19 purpose of NUREG-0654. 20 MR. FLYNN: Your Honor, I -- 21 MS. CHAN: Your Honor, as far as the requirements, 22 the requirements are the planning standards and guidance. A 23 protective response is a planning standard. But the 24 information under that planning standard is guidance as to 25 how the standard can be judged. ( Heritage Reporting Corporation (202) 628-4888 I i l
l DONOVAN - CROSS 18063 l 1
-~. 1 ,
MR. DIGNAN: Your Honor, the point of my argument,
'"' 2 if we could focus on page 85 of 180 which is page 66 in the 3 printed version of the exhibit which is Applicants' 43 (c) .
4 And in full context as the witness is correct in ; 5 pointing out, as you read these things piecemeal is you s , 6 start with J which is on page 73 and it says: "A range of 7 protective action" -- i 8 JUDGE SMITH: Where are you reading from now? 9 MR. DIGNAN: Page 73 is where J starts. 10 JUDGE SMITH: Page 73. 11 MR. DIGNAN: The global of Exhibit 43 (c) . 12 MR. TRAFICONTE: Could you just give us the 13 difference in pages from the global and the other? 14 MR. DIGNAN: 55.
}
15 MR. TRAFICONTE: No , the number of pages that 16 separate the two so I can always find it. 17 MR. DIGNAN: No, it doesn't always run right. 18 MR. TRAFICONTE: Haven't you simply put the 19 December 19- -- 20 MR. DIGNAN: Yes. We have. 21 JUDGE SMITH: Well, maybe you can calculate it for 22 yourself, Mr. Traficonte. I'm looking at page 55 which is 23 global page 73. And for the segment we're talking about it 24 usually has the same difference. 25 MR. DIGNAN: There's a blank page unfortunately. () Heritage Reporting Corporation (202) 628-4888 _ _ _ _ - . - _ __-__-______--________D
DONOVAN - CROSS 18064 1 MR. TRAFICONTE: I'm with you. 2 MR. DIGNAN: And so the numbering -- the 3 differential shifts after page 84. If you start with -- 4 MS. CHAN: I'm sorry, Mr. Dignan, if I could be 5 heard for one second for the information to the parties. 6 The same information is in NUREG-0654, Rev. 1, Supp. 1, page 7 18 it sets out the exact words of the criteria which are 8 somewhat paraphrased in FEMA's report. 9 There are some additions to the criteria in FE'A A's 10 report which are not in NUREG-0654, Rev. 1, Supp. 1, page 18 11 under protective response, planning standards. 12 MR. TRAFICONTE: Just to add my two cents on what 13 we're talking about. Mr. Dignan, if he wants to read J he 14 can read it right out of the regulations because it happens (V) 15 to be 10 CFR 50.47 (b) (10) . It's verbatim. I mean, they 16 take it from the regulation and they put it into the 17 NUREG-0654. They moved it from NUREG-0654 and they put it 18 into the FEMA report. 19 JUDGE SMITH: Move along with the argument because 20 with all these side arguments I am having a lot of trouble 21 following the whole thread, the major gist of this argument 22 this morning. 23 MR. DIGNAN: I'm trying to move through it. 24 JUDGE SMITH: I'm on page 73 and I see nothing 25 there recognizably relevant to anything. l Heritage Reporting Corporation (202) 628-4888 1 l t . _ _ _ _ _
DONOVAN - CROSS 18065 l f es g 1 MR. TRAFICONTE: Let's hear your argument. { 1 ( r
\~# 2 JUDGE SMITH: With that encouragement --
3 (Laughter) 4 MR. DIGNAN: 73, as the witness has stated on two i 5 occasions at least -- while under cross-examination -- he 6 said be careful when you start reading these criteria to be 7 sure you read them in the context of the whole statement. 8 J-10-I, for example, is part of J. And I'm just 9- bringing to the Board's attention that you start with that. 10 A range of protective actions have been developed. Now 11 under that a certain sub-criteria. 12 JUDGE SMITH: Right. 13 MR. DIGNAN: And over here it says: " Projected l 14 traffic" -- l
%-)
15 JUDGE SMITH: Over where? 16 MR. DIGNAN: Over to page 85, the one that Mr. 17 Traficonte is concentrating on. < 18 JUDGE SMITH: We are now on page 104. 19 MR. DIGNAN: I'm sorry, I should have gone to page 20 76 of 180 first because there's J-10. J-10 says: "The l 21 offsite response organization's plans to implement E2 protective measures for the plum exposure pathway shall 23 include -- shall include." l 24 And then you come over: " Projected traffic 25 capacity, evacuation routes under emergency conditions." 0) ( Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18066
- 1 Below that is the statement which is what the
~' 2 witness related: "The ETE study describes the method used 3 to estimate traffic capacities of evacuation routes," giving 4 a cite. "And lists the estimated values of capacity for 5 each route segment under fair weather conditions. For 6 inclement weather capacity reductions of 20 percent of rain 7 and 25 percent of snow are used and then they evaluate that 8 as adequate." l 9 That is to say the plan contains an adequate !
10 discussion of the matters the criterion requires to be 11 discussed in the plan. That is the ent4's reach of a FEMA 12 finding as I understand it. 13 MR. TRAFICONTE: If we can stipulate to that we 14 can save a lot of time, Your Honor. 15 MR. DIGNAN: Mr. Traficonte, I never thought it 16 was anything else. 17 But Mr. Traficonte then goes into cross-examining 18 the witness on what he has looked at in terms of roadways, 19 this, that and the other thing, and he wants that finding 20 stricken. 21 Mr. Traficonte, I think, has the problem of 22 thinking I've got to prove here more than at least I think I 23 have to prove. I'm not going to ask him to agree that I'm 24 right, obviously. 25 And the point is, the finding is on the plan's () Heritage Reporting (202) 628-4888 Corporation I
DONOVAN - CROSS 18067 g-%g 1 contents. And I think the witness has made it crystal clear (') 2 that's what it is. And that's the limit of the finding. 3 You don't lose the rebuttable presumption. 4 What Mr. Traficonte is trying to do is conjure up 5 a strawman of-a rebuttable presumption that reaches much 6 further than we claim it reaches or the regulation allows it 7 to reach and then knock it down. 8 So the motion for a ruling on the rebuttable 9 presumption just simply is irrelevant at this point on this 10 cross-examination. 11 MR. TRAFICONTE: Your Honor, I think there's a 12 very -- 13 JUDGE SMITH: Let me interject at the beginning of ('] 14 your argument. I cannot conceive how you can ever destroy L./ 15 the rebuttable presumption attended to a FEMA finding by 16 cross-examination of a FEMA witness. 17 You can reduce it and reduce it and reduce it to 18 absurdity through that cross-examination, but it will 19 survive and it will persist beccuse it is a presumption 20 created by law. And the law did not look behind it as to 21 the quality of it. 22 MR. TRAFICONTE: I appreciate that. I think 23 that's true. My motion may have been imprecise. I guess I 24 should move for a ruling that the rebuttable presumption has . l 25 been rebutted. That might be a more precise request. () Heritage Reporting (202) 628-4888 Corporation I
DONOVAN - CROSS 18068 i e s, 1 JUDGE SMITH: Even then I'm having difficulty in
\# 2 seeing if that would ever be the case, in the abstract. But 3 I would withhold going too far down that line. j 4 MR. TRAFICONTE: Let me come back to Mr. Dignan's 5 comments which I think are very important for the structure i
6 of the proceeding. 1 7 We're trying to determine in here whether a 8 utility plan provides adequate protection or reasonable 9 assurance. Mr. Dignan has made it crystal clear that he j 10 is -- and he has the burden. The new rule C (1) indicates 11 that the Applicants must come in and demonstrate that the 12 plan is adequate. 13 Contentions have been admitted challenging that ('] 14 adequacy. In the normal course of events he would have the
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15 burden of establishing the adequacy. It would be his 16 burden. 17 He has come in instead and relied expressly and 18 repeatedly on the FEMA review of their plan for the 19 determination up front that it's an adequate plan. 20 JUDGE SMITH: That's right. 21 MR. TRAFICONTE: Not just that it's an adequate 22 plan but up front that he has carried his burden of going 23 forward as to our contentions. 24 JUDGE SMITH: That's right. 25 MR. TRAFICONTE: Okay. His reliance on FEMA's () '- Heritage Reporting Corporation (202) 628-4888 < l
DONOVAN - CROSS 18069 f- 1 presumption as his case on our contentions means that Mr. 2 Donovan has the unhappy task here to defend the FEMA 3 presumption or essentially, as I described it earlier as a l 4 paint. Mr. Dignan has painted every single contention with 5 the FEMA presumption. And he has successfully come in and j 6 argued to you that that presumption means he has met his 7 prima facie case. ; 8 JUDGE SMITH: That's right. 9 MR. TRAFICONTE: We are now on cross-examination 10 uncovering the fact, I believe and I think the record will 11 speak for itself, that the FEMA review at least in part as 12 to these contentions and these issues wasn't designed to go 13 back behind the study and do any kind of a verification.
; 14 JUDGE SMITH: That's right.
15 MR. TRAFICONTE: If that's established as a fact, 16 and yet the contention puts into question exactly that issue 17 whether the ETE study is accurate and adequate, then the 18 FEMA review can't be given a rebuttable presumptive weight. 19 JUDGE SMITH: There is nothing about an 20 Interveners' contention which permits the Board to disregard 21 the law of this Commission as to which we are obliged to 22 follow given to us by the Commissioners that no matter how
, 23 superficial or how shallow their analysis may be, and I'm 24 not saying that it is at all. But we must accept that as 25 the facts of the case unless rebutted.
r i Heritage Reporting Corporation (202) 628-4888
m i l DONOVAN - CROSS 18070 )
-s 1 You can drive it down to almost imperceptibility-2 the presumption, it still persists until rebutted.
3 MR. TRAFICONTE: It might persist as an 4 evidentiary matter. Mr. Dignan has used -- 4 5 JUDGE SMITH: And there is no separate standard. 6 The Commission set the standard in A(1) and said that i I 7 standard may be met in A(2) . Let me get my numbers 8 straight. 9 MR. TRAFICONTE: Yes. Yes. Your numbers were 10 straight I think. 11 JUDGE SMITH: All right. 12 MR. TRAFICONTE: But the point I'm making here, 13 I'm not really disputing in any way your evidentiary 14 intuitions because they are mine as well. We are not
)
15 disputing that the presumption is annihilated in some sense. 16 What we are seeking in our motion is to have a 17 ruling that Mr. Dignan is no longer capable and has no 18 longer been able to make out a prima facie case as to these 19 identified contentions 1 through 6 based on the FEMA review. 20 That's a different matter. 21 JUDGE SMITH: I don't understand the distinction. 22 That's where I slip off your argument. 23 I think that he could have come in here and 24 testified that I walked over there with my clipboard and I 25 said, you got an ETE? Yes. Okay, that's it. He could have () Heritage Reporting Corporation (202) 628-4888
l l DONOVAN - CROSS 18071 1 said that. 2 MR. TRAFICONTE: And would that have carried l 3 today, Your Honor? 4 JUDGE SMITH: That would have carried today. 5 MR. TRAFICONTE: And they would have made out a 6 prima facie case that their utility plan is adequate? 7 JUDGE SMITH: That's right. As a mit ter of law. 8 Not as a matter of logic, not a matter of anything else. 9 But as a question of law given to us by the Commissioners in 10 their regulation. 11 Now, I'm not disparaging the review that they did 12 make. You can argue that. I'm not disparaging it or 13 endorsing it or anything else. 14 MS. DOUGHTY: Your Honor, I need to seek
)
15 clarification on your statement. You said that if Mr. 16 Traficonte on his cross-examination were able to erode his 17 basis for reviewing ETE down to nothing the presumption -- 18 JUDGE SMITH: No. Not nothing. It's just not 19 possible. 20 MS. DOUGHTY: Close to nothing let's say. Then 21 the presumption would not be rebutted thereby? 22 JUDGE SMITH: No. Not unless he somehow turned it 23 around. He could say, all right now, Mr. Donovan, you are 24 an expert in I-DYNEV and you are -- I don't want to give you 25 strategies and you get involved in them -- you're an expert
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DONOVAN - CROSS 18072 ' f~g 1 in I-DYNEV and aside from all of this formality and FEMA 2 stuff and the fact that you work there and everything, just 3 tell me honestly what do you think about it? It's a pretty 4 bad ETE, isn't it? Yes, it is and I'm glad you asked me 5 that. It is. 6 There you may have made your own evidence 7 rebutting the presumption. 8 (Laughter) 9 MR. TRAFICONTE: That has to be the litigator's ) 10 dream. 11 (Laughter) 12 MR. TRAFICONTE: I should have asked that i 13 question. 14 JUDGE SMITH: But so long as you are doing nothing 15 but diminishing their finding or the predicate for their 16 finding, diminishing it. So long as it continues to exist 17 it is by law the law of the case. You need something else. 18 MR. TRAFICONTE: And applicable to a utility plan , 19 being reviewed under C(1) as well. 20 JUDGE SMITH: Now look, we're not going to argue 21 that all the time. You lost on that. On whether the FEMA t 22 finding applies to the utility plan. The Appeal Board ; 23 decided that and we're not going to bring that up anymore. ; 24 Do you understand the distinction I'm making? 25 MR. TRAFICONTE: Yes. () Heritage Reporting Corporation (202) 628-4888 j l l
DONOVAN - CROSS 18073 1 JUDGE SMITH: Then go to the next step. That is 3 d - 2 not to.say that your cross-examination of Mr. Donovan as to 3 the basis for their finding, the predicate and the reason 4 for their finding is inappropriate because that gives a 5 measure to how strong the presumption is once there is 6 something to rebut it with. What your rebutting target is, 7 the objective has to be. 8 MR. TRAFICONTE: Let me put the question, just to 9 belabor this because I think it's going to come up on other 10 issues, discreet issues and we might as well have it out. 11 MR. DIGNAN: Before you put a question. j 12 MR. TRAFICONTE: I'm not putting questions to the 13 witness. 14 MR. DIGNAN: Oh, I thought you said you were going /) 15 to put a question to the witness. 16 MR. TRAFICONTE: No, no. I was just going to 17 inquire one more time. 18 MR. DIGNAN: I'm sorry, I thought you were 19 inquiring of the witness. 20 MR. TRAFICONTE: Again, just to make sure -- and 21 we close the loop because it is going to come up again. 22 It's the Interveners' intent here to meet the prima facie 23 case presented by the Applicants on planning adequacy. 24 In the first instance to meet the prima facie 2S case, to basically have the prima facie case disappear and () Heritage Reporting (202) 628-4888 Corporation
DONOVAN - CROSS 18074 fs 1 shift the burden back on to the Applicants through cross-(~ 2 examination of the FEMA witness. 3 If I follow-what the Board's analysis is, is the 4 Board indicating that we could not successfully rebut the 5 prima facie case being made such that we could be capable 6 from an evidentiary perspective of shifting the burden back 7 to the Applicant? 8 JUDGE SMITH: No, I don't know if that's the case 9 or not. It depends on what you can elicit on the witness. 10 I'm saying, let's take the statement that troubled Ms. 11 Doughty. Let's say your cross-examination reduces, reduces, 12 reduces, reduces the FEMA basis for its finding down to a 13 vanishingly small, but not quite, disappeared value. That 14 still remains the law of this case that the FEMA's finding
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15 is sufficient for their prima facie case unless rebutted. 16 However, your task of rebutting it has then become 17 relatively easier. But you can't do it by -- solely by 18 diminished, diminished, diminished. It has to be something 19 except for that. Because they can give it.the most trivial, 20 frivolous, light-handed effort and cloak the agency 21 presumption around it and it will be the law of this case as 22 compared to how easy it may be to rebut the presumption. 23 I'm not saying as I would rule it. You can even 24 rebut the presumption by his own -- assuming that every 25 evidentiary aspect is in order -- by an attack on it. '
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l l 4 DONOVAN - CROSS 18075
~s 1 MR. TRAFICONTE: I understand, Your Honor.
\ 2 JUDGE SMITH: I need a better example. I can talk 3 about it in the abstract but for the life of me I can't come 4 up with an example.
5 I think we have a very good example here. Let's 6 say as he said, they don't second guess certain things. 7 They take certain things at face value. They accept as a 8 statement of fact the plan. They said as a statement of 9 fact certain things abide it without further testing. 10 Sometimes he may be in the mood that he does sometimes test 11 but he is not obliged to. 12 And I use the example, well maybe he doesn't even 13 want to do that. Maybe he just has a checklist and he looks Yes, got one of these. Puts it up off his (} 14 at the covers. l 15 clipboard. And even if that is so slight, their evaluation 16 is so slight that it would otherwise be valueless in an 17 evidentiary form, so long as we have the regulatory 18 presumption you are still stuck with it. 19 MR. TRAFICONTE: Could I just have one minute to 20 confer, Your Honor. 21 (Counsel conferring.) 22 MR. TRAFICONTE: The only further point I would 23 make and I think I am making it twice and I will be very l 24 brief. I 25 The Interveners would recognize a distinction Heritage aeporting Corporation ([]) (202) 628-4888 l
l l DONOVAN - CROSS 18076 ] 1 between the points that the Board is making with regard to a- l O 2 normal rebuttable presumption. They're hard to kill, I 3 think that's probably right. You can wound them, but you 4 can't finally' annihilate them. That I think is probably 5 right. 6 MR. DIGNAN: Sort of like a toon. 7 MR. TRAFICONTE: Toon. 8 (Laughter) 9 MR..TRAFICONTE: That's right. I hadn't thought 10 about that. That's exactly right. 11 I don't think that the Mass AG has any problem or i 12 any quarrel with that analysis of a presumption. The focus 13 that we're -- and I think I had not been very precise, but I-14 think I am now prepared to be more precise. Our focus here 15 is that there is more at work here than a presumption 16 attaching. 17 Mr. Dignan has successfully argued to the Board 18 before the hearings began that the FEMA review and the 19 rebuttable presumptions that attaches as a matter of law 20 make out the prima facie case. Thereby shifting on to us ; 21 the burden of proceeding with the case, essentially, as to 22 our contentions. 23 That'is something not provided for in the 24 regulation by expressed term. It's an argument that Mr. 25 Dignan made that was obviously quite persuasive. It shifted Heritage Reporting Corporation (202) 628-4888 l
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DONOVAN - CROSS 18077 f- 1 the burden on to us to be going forward on the adequacy of l i 2 the Utility plan. 3 It is that aspect that we believe that you could 4 rule. We have through cross-examination so wounded the toon 5 that it is no longer going to be -- the burden has shifted 6 back to them. The prima facie case has been rebutted. 7 That doesn't mean that the rebuttal presumption is 8 no longer in the case. But it means that it has been r 9 weakened to the point where it can no longer as a matter of 10 law sustain his burden. 11 JUDGE SMITH: You can't weaken a rebuttable 12 presumption as to which this Board is obliged by regulation 13 to accept. You cannot weaken it. You can only kill it.
/ 14 You can make it easier to kill. So long as it 15 exists, continues to exist in a scintilla, it meets the 16 regulatory standard. And he can use it as part of his prima 17 facie case.
18 MR. DIGNAN: Your Honor -- Mr. Traficonte, are you 19 through on your argument? 20 MR. TRAFICONTE: Yes. 21 MR. DIGNAN: Your Honor, earlier we were 22 discussing this whole question of the ETE issue and I 23 indicated to the Board and I obviously abide by that, I 24 don't like to reargue things. At least not without the 25 permission of the Board. I Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18078
/g 1 But I want to know, it should be kept in line,
\-/l 2 when the Board admitted the ETE contentions on the l
4 3 Massachusetts-side it was before the New Hampshire decision 4 was rendered. 5 JUDGE SMITH: That's right. 6 MR. DIGNAN: We argued a res judicata type 7 argument to you. And as I think back that probably, in 8 addition to being as you said blanket and unhelpful to you, 9 it probably was a bad choice of how to phrase it because l
)
10 nothing is res judicata until a judge speaks. And we 11 weren't in that posture. What we were arguing has already 12 been litigated. 13 But the Bcard has spoken quite a bit with respect 14 to ETEs. The Board has found the basic methodology to be ( ' 15 reasonable. The Board has found the model to be essentially 16 the model to use. 17 More importantly, the Board has made other 18 findings in connection, for instance, with the beach 19 populations and that is that it may well be that the ETEs, 20 although the Board says the most accurate ones, and accuracy 21 is the word the Board used, I agree, ones that one can have 22 were required by the regulations. The Board has pointed out 23 that in fact the ETE may well play no role with respect to 24 the beach populations, because given the agency's situation 25 at Seabrook the order will always be to evacuate because () Heritage Reporting Corporation (202) 628-4888 >
7_ DONOVAN - CROSS 18079
~s 1 there is not shelter there and the Board has agreed with )
2 that argument. 3 I guess I'm asking the Board -- and not today and 4 then I will pipe down -- would the Board entertain a motion 5 to reconsider the admission of the ETE issues on the 6 Massachusetts side. I see very little left to litigate. 7 And when you shake it all out and you look at the testimony 8 that has been prefiled and all that, first of all, we spent 9 a while with Dr. Adler on that last intersection again, that 10 interchange. We litigated -- we cross-examined that 11 interchange up and down around the pike with Dr. Ceder if 12 you recall in New Hampshire. 13 I continue to believe there is no ETE issue left
/"'% 14 to litigate in this case. But I certainly don't want to V make a motion to reconsider if I would be treading on the 15 16 Board's patience because I do understand the contention 17 rulings and I'm ready to abide by them. But they were made 18 before the New Hampshire decision was actually issued and 19 articulated.
20 JUDGE SMITH: That's right. 21 And furthermore, as we looked at these bases and l 22 contentions way back in June and July of '88 it was without 23 the sophisticated understanding of the ETE issues that we 24 had just heard that we later gathered as we poured through 25 the record and began to write the decision. () Heritage Reporting (202) 628-4888 Corporation
DONOVAN - CROSS 18080 1 You have a good point there. And when the I 2 Attorney General gave us information as to what they 3 intended to prove in the contention, we usually accepted it l 4 pretty much at face value. 5 Now here we have these two examples here, the ETEs 6 are based upon -- I'm looking at basis D. The ETEs are 7 based upon a traffic management plan that makes the traffic 8 flow rate through the intersection of route, you know, the 9 famous intersection. 10 Now, we litigated that intersection and we are 11 litigating it again. Where does that leave us? Should that' 12 contention be res adjudicata or not? 13 MR. DIGNAN: The answer is -- I' m sorry. Excuse
/ 14 me.
( 15 JUDGE SMITH: It is not. 16 MR. DIGNAN: Well, the answer is that I fully 17 understood the Board's -- you know, we made this argument to 18 you in the context before the NH decision. The. Board made 19 its ruling on the contentions. I try not to reargue. 20 What I'm basically asking the Board is if the 21 Board would be willing, and it's something obviously we 22 ought to write up and brief to you, take a careful motion 23 for reconsideration of whether these contentions should be 24 in the Massachusetts phase. 25 Because I think what the -- there's other things. O Heritage Reporting (202) 628-4888 Corporation _ _ - - _ _ _ _ _ . _ _ _ - - _ . - - - - - _ _ _ _ _ _ _ _- . _ - - - - _I
l i DONOVAN - CROSS 18081 1 In addition, as the Board says to a more sophisticated a 2 understanding of the issues having passed with the writing 3 of the decision. ) 4 We are back to a thing that I recall got a lot of 5 byplay up in New Hampshire. My learned friend over there is 6 a marvelous advocate and I love to watch him cross-examine 7 and he knows all the tricks of the trade and I admire him. 8 But he harps on that word " accurate." So would I if I were 9 sitting in that seat. 10 But the fact of the matter is we now know, we have 11 heard from everybody including your witnesses, accurate when 12 thrown at one of these technical witnesses gets them 13 immediately thinking in the terms of precision that perhaps 14 lawyers don't think when they hear the word. ( 15 But the fact of the matter is, I think one of the I 16 -- I believe it was Judge Harbour who pointed out in a 17 phrase up there, look, aren't we down to where we're talking 18 about times in these ETEs that are really going to be lost 19 in the noise. ! ~ 20 Massachusetts has constantly sought a degree of l 21 precision that: (a) I maintain is not achievable; (b) is 22 not intended. The witnesses one after the other, especially 23 the planners have testified the ETE is a tool. You get a 24 framework for what kind of times you have to deal with in 25 making your PAR decisions. Nobody who works with these Corporation ( Heritage Reporting (202) 628-4888 l l l l
i DONOVAN - CROSS 18082 ] 1 1 things thinks that when they look at the book and the book f 7-s 2 says seven hours and 15 minutes on a rainy day in July that
' '. ' in fact we can guarantee that at seven hours and 15 minutes 3
4 after the OTE the last guy is going out the chute. 5 What it gives them is, if they look and see seven 6 hours and 15 minutes they know for sure it's going to be 7 longer than three hours and they may want to make a decision 8 on that basis, 9 We have put an incredible number of hours in on 10 cross-examining the minutiae of both Adler, Lieberman, and I 11 guess now it's going to_be this witness, understanding of 12 exactly how this ETE adds up in hours and minutes. 13 I don't think it is productive. I don't think it
\ 14 is required. And more importantly, I am at least prepared (b 15 to defend in front of the Appeal Board a ruling, if I could 16 get one, that it was decided in New Hampshire for all 17 intents and purposes and that ETE should no longer be 18 litigated in this litigation.
19 That the ruling of the Board up there in New 20 Hampshire and given the evidence it took has cettled the 21 question of whether or not there are reasonable ETEs in 22 these plans, which is all I submit the law requires. The 23 law does not require the degree of precision that the 24 Attorney General has been constantly looking for. 25 JUDGE SMITH: Of course we agreed with you in our Heritage Reporting Corporation (Oj (202) 628-4888
DONOVAN - CROSS -18083
.1 decision.
2 MR. DIGNAN: I. thought you had. 3 l 4 5 6 7 8 9 10 11 12' 13 14 15. 16 17 18 19 I ) 20 21 22 23 24 25 Heritage Reporting Corporation i (202) 628-4888
DONOVAN - CROSS 18084 g-) 1 JUDGE SMITH: We agreed with you that none of
2 these different times by the varicas parties is going to 3 affect the protective action recommendation; that we wish 4 that we had had a better feeling for the sheltering aspect 5 before we got into the ETEs; and that we would not have 6 permitted such an agonizing evaluation of these minutes and 7 seconds, the over-analysis of so many uncertainties that 8 happened in that litigation and threaten to happen right 9 now. You know, we just analyze these uncertainties fairly 10 well, and the Board apprr,ciates all of that.
11 However, we did admit these two bases based upon 12 traditional Commission contention-accepting standards, that 13 there wr.c a reason for them, and that evidence would be 14 produced. on them. 15 I started to discuss the particular bases. It's 16 easier for me to discuss it in the context of the actual 17 basis than it is in the aba, ract. In the abstract, I agree 18 with you 100 percent. 19 What is this uncounted number of vehicles 20 evacuating from and through the Massachusetts portion of the 21 EPZ? What are those? I don't know about those. I didn't 22 know about them when we admitted the basis. I don't know 23 about them today. 24 I know that if they differ from the facts that we l 25 found in our initial decision, if they are somehow an attack () Heritage Reporting Corporation (202) 628-4888
7 , DONOVAN - CROSS 18085 s 1 upon those facts, you are right; it is res judicata. 4 2 Where do these cars come from? Are they being 3 manufactured in these communities or what? 4 I don't know, and that's why we are here. If you 5 don't-have any anything different, say it. 6 What are those uncounted cars?
, MR. TRAFICONTE: I find this whole argument that l 8 Mr. Dignnn is making, and I have sort of a blush test. They l-9 are the sort of arguments I wouldn't have the nerve to make.
10 But in any event -- 11 JUDGE SMITH: No. There are no arguments that 12 either of you -- 13 (Laughter) 14 JUDGE SMITH: I don't think you have a blush {J~) 15 mechanism. 16 (Laughter) 17 MR. DIGNAN: My friend, if you do operate on the 18 blush test, you have the meter and set point set at bright 19 red. l 20 (Laughter) 1 21 MR. TRAFICONTE: Well, everyone has their own -- 22 it's very hard to make a -- 23 JUDGE SMITH: But the fact is we are writing this, 24 and we have a contention that we are -- we haven't reached l 25 this issue yet, we are writing a decision, and here comes O, Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18086
,r- 1 this basis that ETEs are based on an uncounting of nu.aber of \ 2 vehicles evacuating from and through the Massachusetts 3 portion of the EPZ.
4 When I looked at that, I had no way of knowing 5 whether that was a part of the record before us or not. We 6 assumed that it was not. We assumed that you would have new 7 information that was not litigated and could not have been 8 litigated in the New Hampshire plan. 9 If that's not the case, then we should revisit the 10 basis. 11 MR. DIGNAN: Your Honor, may I ask before -- 12 JUDGE SMITH: Because we did count the cars. 13 MR. TRAFICONTE: Could I just respond -- 14 MR. DIGNAN: Let me respond one thing and then you
}
15 can respond to both of them. 16 Could I ask, obviously the Board, (a) hasn't even t 17 decided whether they are going to entertain such a motion; 18 and (b) has already ruled. But could I ask the Board at its 19 first opportunity to review the prefiled testimony the 20 Attorney General has filed on the ETE issues? 21 Now, I have no doubts that my Brother Traficonte 22 can conjure up an argument that says, well, no, it's not the 23 same thing as New Hampshire. But, you know, what look my 24 technical people have had at it and what admittedly brief 25 look I've had at it, it doesn't pass the duck test. It's ( ) Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18087 -w s 1 the same stuff, the same type of stuff I heard up in New 2 Hampshire. 3 I don't see anything that arises out of the 4 Commonwealth of Massachusetts per se in there. Now maybe I 5 am wrong, and I'm sure my Brother Traficonte will have a 6 list of them by the time he comes in tomorrow. But the fact 7 of the matter is I would ask the Board, in considering 8 whether or not to allow a motion for reconsideration of 9 this, to review what the AG has actually filed to back these 10 bases up, because it all looks pretty generic to my 11 technical people. Now they may be wrong, but I think they 12 are probably right. 13 MR. TRAFICONTE: The point I was going to make is 14 not very dissimilar from that. 15 We filed our testimony on these ETE issues Monday. 16 The reason why I mentioned a blush test is because Mr. 17 Dignan is moving to have summary disposition on these issues 18 in the same week that we filed our testimony. I mean that 19 seems -- 20 MR. DIGNAN: That's a good week. 21 MR. TRAFICONTE: Which I could do it maybe before 22 he has to file. 23 My point is when we wrote the contention, Your 24 Honor, and you wrote your opinion admitting these bases, you 25 hadn't issued an opinion on the New Hampshire case yet. O Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18088 1 JUDGE SMITH: That's right. e
\ 2 MR. TRAFICONTE: There are place-holder bases out 3 here. To that extent, I'm not really disputing what Mr.
4 Dignan is saying. The bottom line would be we filed our ETE 5 testimony Monday. It's been filed. In that testimony we 1 6 have made out and pursued those portions of these ' 7 contentions and bases that we think are still open to us in 8 light of the res judicata effects of the New Hampshire 9 decision. We're not blind to that. So I don't think we 10 really have much of a dispute. 11 JUDGE SMITH: No. I thought I was following you 12 and then I lost track. 13 What is the purpose of your ETE testimony that you , 14 filed Monday? 15 MR. TRAFICONTE: I am not prepared as we sit here, 16 and I can be certainly this afternoon, to recapitulate the 17 sum and substance of the ETE testimony. 18 JUDGE SMITH: Well, is it a place-holder or -- l' 19 MR. TRAFICONTE: No, no. We believe it addresses 20 issues -- 21 JUDGE SMITH: That were left open. 22 MR. TRAFICONTE: -- that are left open, that are 23 not res judicata, that raise factual matters and that are in 24 dispute, and properly admitted. l 25 Do I believe'they cover every single bases? No. l O Heritage Reporting Corporation (202) 628-4888 i
DONOVAN - CROSS 18089 em 1 I believe that Mr. Dignan is right as to certain bases. I'm g d 2 sure the New Hampshire decision has made some of these-bases 3 res judicata. I'm quite sure of that. I can't tell you 4 which ones right now. 5 JUDGE SMITH: All right. I think it would be very 6 helpful if you did address those. 7 MR. TRAFICONTE: That's fine. - 8 JUDGE SMITH: And save everybody a lot of time. 9 Before I forget, Mr. Dignan, with respect-to your 10 motion to reconsider the acceptance of bases as having since 11 become res judicata, that is your right, and we would 12 necessarily have to look at it because it's not just a 13 question of res judicata: It is a question of jurisdiction. 14 We do not -- we may not, we may not continue to receive ()) u 15 evidence and decide matters that have passed from our 16 jurisdiction. We no longer have the authority to de it. We 17 can't even receive the testimony if it is in fact res 18 judicata. 19 MR. DIGNAN: No , I understand it is my right to 20 file and your duty to decide. The reason I made the inquiry 21 is very simple, Your Honor. I have tried not to reargue 22 points we have lost, and I just, frankly, am asking, I want 23 to be sure I would not offend the Board's sensibilities of 24 the proper conduct I should do if such a motior came before 25 you, and I guess you have given me my answer. Reporting Corporation ( Heritage (202) 628-4888 l _______-__ - - _ w
DONOVAN - CROSS 18090 1 rs 1 JUDGE SMITH: Yes, we're insensitive so -- J k 2 (Laughter.) , 3 JUDGE SMITH: Go ahead.
)
4 Is this a good time for the lunch break? { 5 MR. TRAFICONTE: Uas I cross-examining somebody? 6 I don't remember. 7 (Laughter) 8 MR. TRAFICONTE: I think I could probably break 9 here. It doesn't seem to stop the flow of the cross too 10 much. 11 (Laughter) 12 JUDGE SMITH: I don't want to throw you off your 13 pace. 14 (Laughter) [} 15 MR. TRAFICONTE: Could I have an extra 10 minutes? 16 Could we do an hour and 10 minutes? 17 JUDGE SMITH: All right, return at 25 until two. 18 (Whereupon, at 12:25 p.m, the hearing was 19 recessed, to resume at 1:35 p.m. this same day, Thursday, 20 April 6, 1989.) 21 22 23 24 25 () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18091
-s 1 AFTERNOON SESSION k
2 3 (1:35 p.m. ) 4 JUDGE SMITH: Where did we leave this morning's 5 discussion with respect to res judicata and the current ETE 6 bases? 7 You acknowledged, Mr. Traficonte, that some of the 8 bases may very well be res judicata. 9 MR. TRAFICONTE: Yes. 10 JUDGE SMITH: And if that's the case, of course, 11 all parties, all Interveners are under a continuing 12 obligation to identify bases and contentions which are no :
)
13 longer litigated. 14 MR. TRAFICONTE: Well, it would not be that we [ 15 would not be litigating them. It would be that as a matter ; 16 of law the Board would rule with respect to a motion that 17 it's res judicata. 18 JUDGE SMITH: When I mean litigate, I mean trying 19 before us now. So you hhve to look at those and take some 20 action on them. 21 MR. TRAFICONTE: Well, I think the only hedge I 22 have on that is that I think the flow would be more 23 appropriate if Mr. Dignan would move as to certain bases and 24 seek to have them ruled res judicata. 25 JUDGE SMITH: Well, if you acknowledge that () Heritage Reporting Corporation (202) 628-4888 f
DONOVAN - CROSS 18092 1 some -- it should actually be a joint effort between you.. 2 If you acknowledge that you have some bases there that we 3 cannot and will not hear, bring them to -- 4 MR. TRAFICONTE: I want you to rule that you will 5 not and cannot hear them. 6 JUDGE SMITH: That is indeed right. 7 MR. TRAFICONTE:- All right, that's all I am 8 saying. 9 JUDGE SMITH: We will make that rulingrif that's 10' what you want. 11 MR. TRAFICONTE: All right, fine, fine. 12 JUDGE SMITH: But you should identify them to 13 begin with. 14 MR. TRAFICONTE: Sure. [ 15 JUDGE SMITH: If the intent of the bases is now 16 covered by what you know to be our view res judicata, then 17 you identify that and we'll move on from there. 18 MR. TRAFICONTE: Just off the record for a moment. 19 (Discussion off the record. ) 20 MR.-TRAFICONTE: Just so the Board is clear as to 21 where I am on my outline, it's one step forward and two 22 steps back perhaps. But I am through with the second 23 portion, II. We're, unfortunately, not yet through with I, 24 so I am going to have to back up a little bit. 25 i O -- ue - u-(202) 628-4888
DONOVAN - CROSS 18093 1 Whereupon, O' 2 RICHARD W. DONOVAN 3 having been previously duly sworn, was recalled as a witness s 4 herein and was examined and testified further as follows: 5 DIRECT EXAMINATION - (Continued) 6 BY MR. TRAFICONTE: 7 Q This morning was an excursion, Mr. Donovan, that 8 was prompted by my questions concerning your qualifications 9 and your background. I think the detour we took was 10 appropriately in traffic engineering. So I want to go back 11 and ask you some further questions as to your professional 12 training and experience. 13 Do you consider yourself expert in statistical 14 methods? 15 A (Donovan) No, I do not. 16 Q And do you consider yourself expert in survey 17 techniques? 18 A (Donovan) What do you mean by survey techniques? 19 Q Well, for example, if you were presented with a 20 survey of a population, would you be able to form a judgment 21 as to whether the methodology employed is a reasonable and 22 an adequate one? 23 A (Donovan) I might. 24 Q Under what circumstances? 25 A (Donovan) Well, it depends on the subject matter () Heritage Reporting (202) 628-4888 Corporation
DONOVAN - CROSS 18094 gw 1 and how well documented the survey was presented. 2 O Well, that was my point. You are able to make a 3 judgment, are you not, then, as to whether a survey was 4 properly administered and does have a defensible 5 methodology? Those are judgments that are within your 6 expertise? 7 A (Donovan) It would depend. If FEMA has defaned, 8 if you are referring to any survey that it's called for in 9 FEMA's review criteria to determine people that we refer to 10 as the special needs population, FEMA has defined an 11 appropriate methodology for conducting that survey. 12 Q And you are expert in what that methodology 13 requires? 14 A (Donovan) No. I'm saying we have defined what's 15 an appropriate means to conduct that survey. 16 Q All right. Then I take it from that answer that 17 you consider yourself expert in judging whether a particular 18 survey is in accordance with that defined methodology. 19 Is my question unclear? 20 A (Donovan) Yes, it is. 21 Q okay, let me put it to you a different way. 22 I understand that what you are saying is that FEMA 23 has defined a particular methodology for a special needs 24 survey. 25 Is that a fair statement? ' O (j Heritage Reporting Corporation (202) 628-4888 L-______-______-___
DONOVAN - CROSS 18095 , l
s 1 A (Donovan) FEMA has defined a means. In FEMA's l i 2 REP 11, which is the document that we used to review public 3 education materials, we have a section in there that says 4 that people engaged in offsite planning can use an annual 5 mail-back return card as an appropriate means to determine ,
l 6 if people need special assistance or need special j l 7 notifications. And we commonly refer to these groups of 8 people as special needs people. 9 So we say if they address the generic nature of 10 asking certain questions which would further expand upon in 11 a paper that we call Guidance Memorandum 24, that a mail-1 12 back survey is an appropriate means to conduct such a survey l 13 as a means of building a data base for these special needs i 34 populations. ()3 G 15 Q All right. I understand your answer, and the 16 question is slightly different. , 17 If an Intervenor comes in, Mr. Donovan, and 18 challenges the mail-back survey as not being an adequate 19 methodology because, for example, it's not effective in 20 getting information from a sufficient number of respondents, 21 if an Intervenor challenged the survey on that basis, would 22 you have expertise in survey instruments such that you could i 23 judge the effectiveness of that survey? l l 24 JUDGE SMITH: Wait a minute. Now, is our 25 understanding here of what the purpose of the survey is? I f^) Heritage Reporting ij Corporation ! (202) 628-4888 ) L__________ __
DONOVAN - CROSS 18096
- 1 wonder if it's not a misnomer, if it actually is a survey, 2 or if it's not multiple letters to multiple people to 3 identify particular people.
4 MR. TRAFICONTE: I was using survey in the loosest 5 sense as any vehicle or methodology for canvassing a 6 population and gathering information. l 7 THE WITNESS: (Donovan) I believe the issue of 8 trying to elicit my response on, Gentlemen of the Board, is 9 this questionnaire was enclosed in the New Hampshire Yankee 10 calendar. Excuse me for holding it upside-down. It was 11 mailed out to all residents in the Massachusetts portion of 12 the Seabrook plume EPZ. 13 My answer to him was that it's FEMA's policy, as ( 14 spelled out in Guidance Memorandum 24 and in REP 11, if b 15 whoever is doing the mailing uses a survey card asking the , i 16 people if they need special help, that they could fill out 17 this card. And this survey form and this effort, through i l 18 using the card in a mail-backc postage paid back is an 19 acceptable and appropriate means to build a data bank for 20 special needs persons. 21 And this particular form, we reviewed -- 22 JUDGE SMITH: That form would be returned and the 23 person would identify himself on that form. 24 THE WITNESS: (Donovan) Right. 25 JUDGE SMITH: And you would know that that is a () Heritage Reporting Corporation (202) 628-4888 _ - _ - _ _ - _ . l
DONOVAN --CROSS 18097 i g g- 1 special needs person. U 2 (Document-proffered to the Board.) 3 MR. TRAFICONTE: Might I just ask, is that 4 information in the record? Are they public information 5 documents? 6 MR. DIGNAN: Their prefiled Exhibit 40, but it's 7 not been admitted into evidence. 8 MR. TRAFICONTE: Their prefiled Exhibit No. 407 9 MR. DIGNAN: Yes. 10 BY MR. TRAFICONTE: 11 Q Let me try to be very precise with my question, 12 Mr. Donovan. 13 I understand that FEMA has a requirement for such ('
\--
14 a survey being done. I take it that part of your review of 15 the SPMC was to make the determination that such a survey, i 16 in accordance with the FEMA requirements, was in fact done. 17 Is that a fair statement? 18 A (Donovan) Well, we went beyond that. But if you 19 want to say our review was only limited to that point. 20 0 I'm just focusing on the survey aspect at this 21 point. 22 A (Donovan) Yes. The plan, the SPMC plan makes a 23 commitment to conduct an annual survey and it also makes a 24 commitment to do other things to quantify, or what I would 25 call quality control or quality assure the replies back from I () Heritage Reporting Corporation (202) 628-4888 J l
i DONOVAN - CROSS 18098 f-~ 1 that survey so that they develop and maintain an accurate
2 data base of people who need special assistance in the event 3 an emergency occurs at Seabrook.
If the Interveners, Mr. Donovan, come in and j 4 Q l 5 challenge that survey technique as sn adequate way of 6 building the data base for the special population in the 1 7 Seabrook EPZ, do you have expertise in defending FEMA's 8 requirement for this kind of survey as an adequate survey?- 9 MR. FLYNN: May I ask for a point of 10 clarification? . I 11 It's not clear to me whether the line of 12 questioning goes to whether the guidance in FEMA's REP 11 is 13 appropriate, or whether the question goes to Mr. Donovan's 14 expertise in survey design sampling techniques and so on, so ['J] that if a hypothetical was put to him, he could offer an 15 16 opinion on the appropriateness of some other method. 17 MR. TRAFICONTE: The question is alcng the same 18 line as I was trying to develop this morning. I am focusing 19 on Mr. Donovan's expertise so that we can have a sense and 20 that the record can be clear as to what the nature of the 21 FEMA finding is at this point. 22 I appreciate that FEMA has a requirement for a 23 survey. I appreciate that there is such a survey. I I 24 appreciate that he's reviewed the plan and found such a 25 survey. And I am inquiring whether he has the capacity and l () neritage Reporting corporation (202) 628-4888 l l
DONOVAN - CROSS 18099 i
,e g 1 - the expertise to make a judgment as to our contention that- j \s,) 2 says that that survey is an inadequate vehicle and does not i
3 gather sufficient information as to the special population. 4 MR. FLYNN: Okay, thank you. The question is 5 clear to me. 6 Is it clear to the witness? THE WITNESS: (Donovan) I believe it is. I have 8 attempted to answer it and I'll try to answer it again. 9 BY MR. TRAFICONTE: 10 Q All right.- 11 A (Donovan) It's FEMA's policy, if they conduct 12 such a survey, that it is an acceptable effort in order to 13 establish a data base. The SPMC goes beyond that because 14 they make a commitment to follow up in quality control and
-15 quality assure with either phone calls or visits to these 16 individuals who do respond to determine that they understand j j
17 the purpose of the survey and the purpose of the assistance 18 that would be offered in the event of an emergency. 19 Q How about the ones who don't respond? Does FEMA 20 have a judgment as to the number who may not have responded? 21 A (Donovan) No , FEMA does not. Again, FEMA' s 22 position is spelled out in the two documents that I have 23 referenced. That if any offsite organization goes through 24 the process of conducting a survey, that that is adequate. 1 l l 25 0 Okay. l () neritage Reporting corporation (202) 628-4888 i- -- _ _ _ _ _ _ _ ___ __ _ J
1 I DONOVAN - CROSS 18100
-~ 1 A (Donovan) The point I am making is they went
~' 2 beyond that level and took extra steps to ensure that the j 3 people who are identified in Appendix M, of which there is a l 4 summary page, that special needs persons will receive 5 supplemental notification and special assistance if they 6 need it.
7 Q That was a clarifying answer. Let me come back in 8 a moment to the extra steps they took. Let's return to your 9 answer. 10 If the utility or the planners performed this 11 survey and there is such a survey in the plan or the results 12 of such a survey are set forth in the plan, FEMA determines 13 that to have adequately met the planning requirement; is
/ 14 that correct?
15 A (Donovan) That was what my answer was attempting 16 to convey. 17 Q That's fine. I think it did. 18 A (Donovan) The only thing I was referring to is 1 19 Planning Standard J, Criterion J-10-D, which is that the 20 plan contains means for protecting those persons whose 21 mobility is impaired' . The only way you are going to find 22 out if people have mobility that's impaired or those 23 audiences that are not located in certain institutions or 24 schools is to conduct a survey. 25 Q No dispute on that. The dispute seems to be in () Heritage Reporting (202) 628-4888 Corporation _ _ _ _ _ _ _ _ _ _ - . _ _ _ _ _ _ _ _ _ _ _ _ ___ _ _ a
l-DONOVAN - CROSS 18101 i f-- 1. our case, Mr. Donovan, whether the survey employed leaves V'- 2 out too many people. 3 And my question to you and to FEMA is, has FEMA 4 made an independent determination as to whether the survey 5 in this case did reasonably and adequately elicit responses l 6 for a sufficient number of the population? Or, does it 7 accept, or did it in this case simply accept as a given that-8 there was such a survey performed? 9 A (Donovan) We went beyond that. We did not just 10 accept the fact that they conducted a survey. 11 Q Okay. 12 A (Donovan) We met with their planning team. They 13 gave us a briefing on how they set out to establish their () 14 15 data base. They offered to allow us to examine their records of the conversations they had with each of the 16 respondees to the survey. They explained to us the extra 17 measures they took to try to network with the special needs 18 organizations that do exist for people who are normally 19 considered handicapped or have certain mobility impairments, 20 and their efforts in the future to continue to improve and 21 maintain this data base. 22 And we looked at those records, and we looked at 23 their efforts, and we looked at their survey mechanism as 24 contained in this document here. 25 0 And as a result of that review, did FEMA make the () Heritage Reporting Corporation (202) 628-4888 l l l
DONOVAN - CROSS 18102 1 determination that they have in fact solicited information 74 (J-I 2 from a sufficient number of the actual handicapped , 1 l3 individuals in the Seabrook EPZ? 4 A (Donovan) The solicited information from all the 5 people in the EPZ. 6 Q Solicit in the sense of the word in which you 7 successfully get the information. 8 A (Donovan) No. 9 Q Solicit and get. , 10 A (Donovan) Well, you've got a different 11 interpretation than I do. 12 Q But maybe I just invented that definition of 13 solicit. I think you are probably right. Solicit is
/"'s 14 probably a one-way street.
b 15 Did you make the judgment that the efforts at l l 16 solicitation were successful enough and that the utility in 17 this case, through its survey and other steps, has 18 identified a sufficient number of the specially handicapped , l 19 in the Seabrook EPZ? I 20 Was that part of your judgment? 21 A (Donovan) I have to answer no, because you are 22 asking questions to some other standard other than what I am 1 23 required to -- l 24 Q I'm asking questions concerning exactly what the j 25 standard is. - O Heritage Reporting (202) 628-4888 Corporation
DONOVAN - CROSS 18103
<- 'l A (Donovan) The standard is that they make a good
('-)g They 2 faith effort, which the Applicant in this case did. 3 did a survey. They established a data base. They followed ; 4 up to quality assure, quality control their data base. They 5 made a new effort to follow up on special interest groups. 6 And to date, they have identified some approximately 550 7 people with special needs above and beyond those that are in I 8 certain facilities such as nursing homes, hospitals and day 9 care centers and schools. 10 0 I appreciate they have identified 550 or a certain 11 number. But my question would be, are you comfortable in 12 stating that 550 is pretty close to an accurate number, or 13 could there well be 1500 people, a thousand of whom have l 14 simply not been heard from because the survey vehicle and 15 their other efforts were not successful in reaching the 16 entirety of the population? 17 Has FEMA made that determination? 18 A (Donovan) I don't know how to answer your 19 question. Could you restate it? 20 0 Was it unclear? Is the question unclear? 21 A (Donovan) Well,'you are asking me for some higher 22 standard other than a good faith effort. 23 Q It's neither higher nor lower. It's an effort to 24 determine, so the record is clear, what the standard is that 25 FEMA used. () Heritage Reporting (202) 628-4888 Corporation l
DONOVAN - CROSS 18104
-~. 1 MR. FLYNN: Let me suggest that the question is
2 unclear, and I'll explain why I think it is. !
l 3 The witness has explained that if you are talking 4 about applying the standard, the standard is articulated in j 5 guidance, NUREG-0654. But he has also testified that he has 6 offered technical assistance, which is a different matter, 7 to the Applicant. The Applicant has accepted that technical 8 assistance and taken efforts to follow up on that. 9 Now that is a different question from evaluating 10 the effectiveness of the survey effort or the adequacy in 11 the sense of whether it complies with NUREG-0654. So the 12 question confuses the two enterprises that the witness has 13 been talking about. 14 MR. TRAFICONTE: Your Honor, it's not at all 15 unclear to me, and maybe I am the only one in the room who 1 16 can say that. The question here, and it's going to be again 17 and again on the table is what is the nature of the FEMA l 18 review. And that's an essential question to the l 19 Interveners because it's given a rebuttable presumption and, j 20 as we discussed this morning, the plan is found prima facie 21 adequate because FEMA has reviewed it and come back with its 22 findings. 23 We are inquiring in this regard what is the nature 24 of their review. We have a conteation. In our trial brief, 25 this issue is discussed at page 42. We have a contention
)
() Heritage Reporting Corporation (202) 628-4888 l
l DONOVAN - CROSS- 18105 f-~ 1 that challenges the adequacy of the survey instrument used L (
'- 2 to elicit information from the handicapped.
3 This individual is here representing FEMA giving a 4 stamp to that survey. It's adequate. We are inquiring as 5 to what is the sense in which they have made that finding. 6 Is it adequate because it's a survey just like the survey 7 they require? But whether the 550 figure is off by a factor 8 of a thousand or off by a factor of 10 is not something that 9 FEMA has made a determination on in this case. That's the 10 inquiry. It's not unclear to me. 11 MR. FLYNN: And I don't resist the suggestion that 12 we have not made a limited finding in the sense that Mr. 13 Traficonte argues. But neither should it be understood that 14 we have paid no attention to those issues. 15 MR. TRAFICONTE: Well, which is it? 16 MR. FLYNN: I think the answer has already been 17 stated. 18 MR. TRAFICONTE: Okay, well, maybe we can 19 stipulate to it. Is FEMA counsel now indicating that it was 20 a limited finding as I just described, and it may well be 21 off by a factor of as many as a thousand people or ten 22 people or a hundred people, and FEMA has made no effort to 23 assess the range of accuracy of the number of handicapped 24 identified? 25 MR. FLYNN: I suggest that you put that in -- () Heritage Reporting Corporation (202) 628-4888
l-i DONOVAN - CROSS 18106 ! l l 1 JUDGE SMITH: Is that true? I don't know if ':( 2 that's true or not. 3 MR. TRAFICONTE: Well, I don't either, but I 4 thought that was -- 5 MR. FLYNN: May I suggest that we put that f 6 question to the witness? j 7 MR. TRAFICONTE: Fine. L i 8 MR. FLYNN: That is a perfectly clear question. 9 MR. TRAFICONTE: Good. 10 You want me to put it again. 11 BY MR. TRAFICONTE: I 12 Q FEMA's judgment as to the adequacy of the survey j t 13 in this instance, has FEMA made the determination that the 14 number of the handicapped identified is accurate within a 15 range of any order of magnitude? 16 A (Donovan) No, we have not. 17 Your question earlier, which you then superimposed 18 another question on top of it, which was the question you 19 have just asked me -- what is the nature of the FEMA 20 review -- I tried to give you the answer to that. 21 The nature of the FEMA review is to see if the 22 offsite response organization makes a good faith effort to 23 establish that there are persons who need special i 24 assistance. And we identify, (a) appropriate means for 25 making that good faith effort by conducting a survey () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18107
- f. 1 conducted either with the annual distribution of educational
(' 2 material or conducted separately. 3 We also discuss if this survey presents results 4 which indicate that special education programs and/or other 5 means are necessary to ensure that all the target audience 6 is reached, that that would be an end product that would 7 start off after the survey results were reviewed and 8 analyzed. 9 The Applicant in this case, the offsite response 10 organization did conduct a survey. They followed up with 11 additional quality control and quality assurance to 12 establish, through the use of five special skills codes, 13 their data base. 14 And they have asked us, before they mailed out 1
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15 this instrument, to look at their survey card that's in this 16 form. We did look at it. We did consider it to be thorough 17 and complete and address the issues that are called for 18 either in Guidance Memorandum 24 or in our REP 11 document. l 19 We also say in our document, which is Exhibit 20 43 (c) under Planning Standard G-2, which is the public 21 education program, that the Applicant had not at the time we l 22 forwarded this report to the NRC committed its public i 23 education program. l 24 Since that time, in January, the Applicant l 25 distributed this calendar, and they are in the process of j l () Heritage Reporting (202) 628-4888 Corporation l l
DONOVAN - CROSS 18108 1 reviewing the results they got back from this survey here. 2 And they also have made a commitment to FEMA that when they 3 receive their 5 percent license, they will implement.other 4 portions of their public education program. 5 The second question that Mr. Traficonte has asked, 6 is this adequate results of the survey, I think will ramain 7 to be seen until they go into the rest of the public 8 education program. 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 I \ Heritage Reporting Corporation 2 (202) 628-4888
I 1 DONOVAN - CROSS 18109 I I 1 l 1 Q The original guestion was, do you personally have g
\,g) 2 expertise in survey techniques?
3 A (Donovan) My answer was, no. ( 4 Q Right. 5 Now health physics, Mr. Donovan, you're obviously 6 familiar with what health physics generally entails, are you 7 not? 8 A (Donovan) Yes, I am. 9 Q Do you consider yourself an expert in the' area of 10 health physics? 11 First of all, am I using right, it doesn't sound 12 right to me. Is that the right phrase, health physics? 13 A (Donovan) Well, there's a term of art called the 14 health physicist. 15 Q Can you just define that for me? 16 A (Donovan) Well, to be considered a health 17 physicist usually means one would be accredited by the 18 American Health Physics Society. At that level of expertise 19 I do not consider myself to be considered a health 20 physicist. 21 But do I understand the effects of radiation and 22 do I understand the principles behind dose projection and 23 dose calculations? The answer to those questions are, yes. 24 Q And that would include, would it not, the capacity 25 that you have to evaluate shelter space and the various dose () Heritage Reporting Corporation (202) 628-4888
( DONOVAN - CROSS 18110 1 reduction factors that a given shelter would have?
"' 2 Do you consider'yourself an expert in being able 3 to make that assessment?
4 A (Donovan) Are you asking me, can I look at a 5 given shelter and give you a reduction factor? 6 Q Yes. 7 A (Donovan) I know the principles and mechanics. 8 And any health physicist would turn to a handbook which 9 would follow a procedure specified to determine such a 10 reduction factor. 11 If you're asking me if I could make that 12 calculation? The answer is, yes, I could make that 13 calculation if I had to. 14 Q Was the last part of your answer, if I had to? l 15 A (Donovan) Yes. 16 Q What about the area of communications, not from a 17 hardware perspective but from a human factors perspective, 18 do you consider yourself an expert in the area of public 19 information and communications? l 20 A (Donovan) Those are two separate and distinct 21 subjects. 22 Q Let's take them one at a time. 23 Public information? 24 A (Donovan) Are you referring to emergency public l 25 information? o Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18111
,eng 1 Q As a subset of public information, yes.
U 2 A (Donovan) What do you mean by expert in that 3 sense? 4 Q As I have been using it in the questions today? 5 A (Donovan) I understand, I believe, and consider 6 myself knowledgeable in all the aspects necessary to conduct 7 an effective emergency public information program, which 8 involves beeping the media; being responsive to the public; 9 and providing accurate and reasonable news releases. 10 Q You do consider yourself an expert in that regard. 11 A (Donovan) Yes. 12 Q As to that expertise what is the basis for that? 13 Why do you believe you are an expert in that area? 14 A (Donovan) Through some 14 odd years of evaluating {) 15 that function in radiological emergency preparedness 16 exercises. j 17 JUDGE SMITH: It just dawned on me, something has 18 been troubling me about this line of questioning and it just 19 dawned on me what it is. You're examining him as if he were 20 being offered as an expert witness. 21 MR. TRAFICONTE: Yes. 22 JUDGE SMITH: On these various subject matters. 23 MR. TRAFICONTE: Yes, am. That's absointely 24 right. 25 JUDGE SMITH: And that doesn't quite fit in to Reporting Corporation ( Heritage (202) 628-4888
L l
-DONOVAN - CROSS 18112 1 what is happening here. He is a general' administrator.
g
\- 2 MR. TRAFICONTE: Your Honor, he is here as the l
3 FEMA witness. ( 4 JUDGE SMITH: But not as an expert witness. He is 5 here as a fact witness. 6 MR. TRAFICONTE: As a fact witness reporting, as a 7- matter of fact, a finding. 8 JUDGE SMITH: As to how he managed this process. 9 And the skills and talents that he brought to it. He is not 10 . here as an expert witness expressing an opinion in the 11 abstract. 12 However, I'm not saying that questions asked to 13 his talents and skills and ability and experience are not 14 important. .But, for example, sitting through that health [ 15 physicist thing, something was wrong with it. Obviously, he 16 is not a health physicist. We all know what a health 17 physicist is. 18 It's just that your questions are directed toward 19 somebody who is here as a specializing expert. And he has 20 never held himself out to be that. He's an administrator 21 and he has developed expertise in the programs that the 22 agency develops. 23 MR. TRAFICONTE: Your Honor, it's on the basis of 24 Mr. Donovan's review and evaluation of the plan that FEMA 25 has made the adequacy -- Heritage Reporting Corporation (202) 628-4888
l l DONOVAN - CROSS 18113 gg 1 JLDGE SMITH: I know. Right. But go ahead. It's 6,' 2 just that I think you ought to tailor your questions a
- 3 little bit more realistically as to how the world really l
1 l 4 works. 5 MR. TRAFICONTE: I may not understand how the 6 world really works. I took the basis for the presumption 7 that attaches to the lead agency finding to be based on some 8 expertise. 9 JUDGE SMITH: What type of person would be willing 10 to work for the United States Government who is at the same 11 time a hecith physicist. An expert in communications. An 12 expert in human factor understanding the communications. 13 And surveying. And what else do we have. And you're not 14 done yet.
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15 MR. TRAFICONTE: Well, this is the whole point of 16 the cross-examination, Your Honor. 17 JUDGE SMITH: Go ahead. I'm just explaining to 18 you thct it is coming across to this member of the Board as 19 rather superficial and unavailing. But you're free. 20 MR. TRAFICONTE: Thank you. As always, an open 21 invitation. 22 Let me see if I can close the loop and make it 23 availing pretty quickly. 24 BY MR. TRAFICONTE: 25 Q You heard the exchange, Mr. Donovan, the Board and Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18114
-~ 1 I just had. Did you, in conducting your review, for
\ 2 purposes of appearing here today and defending FEMA's 3 findings did you consult with different individuals with the 4 various expertise that we were just discussing?
5 A (Donovan) Not normally. 6 Q So it's not a normal process for you at least when - 7 you engage in a review of a plan on behalf of FEMA to 8 consult with any of the individuals with more particular 9 expertise in these matters? That's not part of what you 10 feel is necessary for FEMA to make its finding? 11 A (Donovan) Well, your statement is not 100 percent 12 true. 13 Q Let me put the question a different way. 14 You consider yourself as having enough expertise,
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15 do you not, in these areas to review and evaluate an 16 emergency plan on behalf of FEMA? 17 A (Donovan) Yes, I do. I believe, it has been 18 stated that here is an expert witness for the agency. 19 Expert on how FEMA applies its review criteria against the 20 plan and preparedness. And a witness on how FEMA's process 21 works at the regional level and the headquarters level. 22 Q Not to dispute with you at all, Mr. Donovan, on 23 your expertise as to how the FEMA administrative process 24 works. No dispute at all. 25 The question is, your evaluation criteria include 1 (p) Heritage Reporting Corporation (202) 628-4888 l l
DONOVAN - CROSS 18115 f-~g 1 criteria, for example, that an ade,quate communication system V 2 be in place. Isn't that correct? I think that's the F 3 planning standard, if I'm not mistaken? 4 A (Donovan) Yes. But you and I have a different 5 definition of adequate as we apply our criteria. 6 0 Apparently we do. An honest difference of 7 opinion. 8 But in any event, there are these criteria in the 9 planning standards that involve communication equipment, do I 10 they not? 11 A (Donovan) Yes. 12 O When you're engaged in a review, in part engaged 13 in a review as to whether the hardware and equipment meets ( 14 the requirements and the standards that FEMA has
}
15 established. Isn't that correct? 16 A (Donovan) That's correct. 17 Q So therefore you -- and you just testified that 18 you normally don't go out and consult with a communications 19 expert in this regard. 20 You consider yourself expert enough to make the 21 judgment that the communications hardware that's existing or i j 22 that's presented in a plan is adequate. 23 That's correct, too, isn't it? 24 MR. FLYNN: I think it's necessary for the witness 25 to explain how he thinks his understanding of the term (O/ Heritage Reporting Corporation (202) 628-4888 L_ __ ___ _
DONOVAN - CROSS 18116 g 1 " adequate" differs from what he thinks your interpretation /-w< 2' of the term " adequate" means, otherwise his answer is not 3 going to make any sense. 4 Would you accept that, Mr. Traficonte? 5 MR. TRAFICONTE: Well, I don't dispute it except 6 it sounds to me like something you would want to do on 7 redirect. And we're going to have an opportunity in this 8 cross to get directly to the question perhaps of what 9 adequate in his mind means. 10 MR. FLYN17 Very well. I have not objected. 11 JUDGE SMITH: The overall point is so simple. So 12 easily understood. You know, what he is, what he is not, 13 what the areas are. It seems to me we can just move along 14 with more dispatch. We know what he is. We have looked at 15 his background. We heard what he said. We know what he I 16 does. 17 The point is being made. I mean, we're picking up 18 the point. But can't we move along on it. 19 MR. TRAFICONTE: Fine. 20 JUDGE SMITH: I mean, this is not one of the most 21 complex issues confronting mankind. 22 MR. FLYNN: I'm sorry, there's a question pending 23 and no objection, is there not? 24 THE WITNESS: (Donovan) Do you want me to answer? 25 MR. TRAFICONTE: I wasn't aware that there was a ( ') Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18117 p ,. 1 question. 2 THE WITNESS: (Donovan) I thought the Judge was 3 advocating you to proceed. 4 MR. TRAFICONTE: I'll withdraw the last question 5 if there is one. 6 MR. DIGNAN: Can I inquire respectfully through 7 the Board and Mr. Traficonte, is the line of cross we're 8 engaged in designed to illustrate that FEMA doesn't do a 9 very good job at making its findings? Is that basically 10 what we're after here? 11 Because if that's so I would like to be heard as 12 to whether the line should be allowed to continue in light 13 of the NRC reg. And I get the drift and especially from the 14 questions to this witness of whether or not he considers {) 15 himself an expert on health physics or whether or not he 16 just simply took the FEMA guidance as to what kind of survey 17 should be done or whether he was an expert separately who 18 could defend a decision to use that kind of survey. 19 What really the thrust of this is, is to 20 demonstrate that FEMA generically, the way they review a 21 plan is not a very good way. 22 I'm not saying it's illegitimate to have, but is 23 that what we're trying to demonstrate. Because if it is, I 24 don't think it's a relevant line and would like to object to < l 25 it under the regulations. , I l Heritage Reporting Corporation (202) 628-4888 1 l
DONOVAN - CROSS 18118
,- - 1 MR. TRAFICONTE: Your Honor, I think this is
' In my part it's an effort'that goes to the 2 transparent.
3 weight that should be given to the presumption. I don't 4 think there's much dispute. 5 And as the Board has indicated it has gotten the 6 message that the individual who made the review has limited j
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7 expertise and did not consult with those who have more 8 expertise nor did he feel it necessary to consult with 9 those. It runs to the weight. H 10 I don't know why that's an objectionable line. I 11 think the standard for my cross-examination, by the way,
.2 should be the cross-examination of Ed Thomas.
13 MR. DIGNAN: You haven't reached that standard 14 yet. 15 MR. TRAFICONTE: No. I've been quiet and 16 quiescent. 17 MR. DIGNAN: The reason I asked the question, 18 because of this word " rebuttable presumption," we're hung up 19 on it. I'm just looking at the regulation and carefully in 20 what its limits and nonlimits are. 21 The entire regulation says: "The NRC will base 22 its finding on a review of the FEMA findings and 23 determinations as to whether state and local emergency plans 24 are adequate. The plans are adequate." 25 MR. TRAF'ICONTE : State and local. E
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l DONOVAN - CROSS 18119 gw 1 MR. DIGNAN: Yes. Emergency plans are adequate. 2 The Appeal Board shuts you out on that one, John. Come on. 3 "And whether there is reasonable assurance they 4 can be implemented. And on the NRC assessment as to whether 5 the Applicants onsite emergency plans are adequate and 6 whether there is reasonable assurance they can be 7 implemented. 8 A FEMA finding will primarily be based on a review 9 of the plans. A review of the plans. Any other information 10 already available to FEMA may be considered in assessing 11 whether there is reasonable assurance that the plans can be 12 implemented." 13 But the adequacy finding is based on FEMA's review 14 of the plans. And the NRC -- Mr. Traficonte may be unhappy (G'~') 15 they did it, but your Supreme Court has said: "If FEMA 16 reviews the plans and FEMA exercising its expert judgment 17 such as it is." Mr. Traficonte may think FEMA is not expert 18 and FEMA doesr.'t know what it's doing. But the federal 19 agency to whom you report has said, if that agency has found 20 those plans adequate on the basis of a review of the plans, 21 that takes care of the adequacy finding at least to the 22 point of a rebuttable presumption. 23 MR. TRAFICONTE: That's right. 24 MR. DIGNAN: That's what the reg says. 25 MR. TRAFICONTE: And -- O) t
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DONOVAN - CROSS 18120 1 MR. DIGNAN: Excuse me, may I finish my argument. 2 What this witness is clearly stating is, I have 3 reviewed the plans. I have reached the judgment they are 4 adequate. That judgment has now become the official 5 position of FEMA as shown by Exhibit 43 (a) . And has been 6 sent over to our Supreme Court, which has now said, on that 7 basis the rebuttable -- on that basis alone the rebuttal -- 8 JUDGE SMITH: Wait a minute. 9 For the moment you're talking to the Supreme 10 Court. 11 MR. DIGNAN: I know. Hang on a second. Excuse 12 me, Your Honor, that was too flippant and I didn't mean it 13 that way. 14 - My point being that the Commission really acting
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15 as the Congress, if you will, at this point has dictated 16 that that, and that alone gives this a rebuttable 17 presumption. 18 Now it may well be that some Court of Appeal 19 somewhere can decide that that's a bad regulation, that the 20 Commission shouldn't have done it. 21 JUDGE SMITH: You don't have to argue that. 22 MR. DIGNAN: Okay. Well, my point is, should a 23 line of cross-examination be permitted that says -- let's 24 take the illustration when we were starting down the survey. 25 The witness' defense of his decision on the survey was this, () Heritage Reporting (202) 628-4888 Corporation
l DONOVAN - CROSS 18121 fx 1 I have -- the number was GM-24. GM-24 tells me if they do
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2 this kind of a survey, in our-agency's. judgment that's the 3 kind you should do. l 4 And I looked at it. Apparently he is saying it 5 follows GM-24 and he says, they went further than GM-24. 6 And I reached the decision on that basis that it was 7 adequate. That's my agency's policy. l 8 Now what Mr. Traficonte was to apparently explore i 9 is whether that policy of FEMA is any good. In other words, 10 shouldn't FEMA have maybe adopted a different kind of 11 technique. I say that's not open for litigation in NRC 12 proceedings. It just simply is not. Because of what the 13 Commission has said in this regulation.
'. 14 JUDGE SMITH: You're making a conclusive
[ 15 presumption out of a rebuttable -- 16 MR. DIGNAN: No. 17 MR. TRAFICONTE: How could we possibly rebut the 18 presumption if that were the law, Your Honor? We have a 19 contention at issue. Something has been put into 20 litigation. 21 When there's litigation the rule says, only -- and 22 I emphasize the word only -- it says only that a rebuttable 23 presumption attaches. Until what? Until perhaps evidence 24 comes in that rebuts it or that it is explored to the extent 25 that it's revealed not to be given really much weight. Heritage Reporting Corporation (202) 628-4888 l
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DONOVAN - CROSS 18122 g- 1 They have the burden of proof on these matters. 2 MR. DIGNAN: I'll tell you how it can be rebutted. 3 It can be rebutted, it seems to me, in the way the 4 regulation is set up this way. Keep in mind what the 5 regulation says, the plan shall be reviewed for adequacy. 6 If FEMA has found that under criterion X, and I'm 7 deliberately keeping this abstract, it is adequate. And 8 criterion X says, you shall have a map of the EPZ in showing 9 topography, just take something like that. 10 And they find an adequacy under that. And you 11 walk in here and I put in the plan and you say to the Board, . i 12 well, you see if you can find it, Board, I couldn't. There 13 is no map in there. Despite this finding there is no map in 14 there showing topography. The presumption would be 15 rebutted. 16 But what we're driving this thing to is taking in 17 each NRC case, and I can't believe that's what the 18 Commission intended when it took the extraordinary step of 19 putting the rebuttable presumption in. It's the only place 20 in the regulations that I'm aware of where those words 21 appear. i 22 That they really seriously thought we would 23 litigate in each and every NRC proceeding the wisdom, for i 1 24 example, of a FEMA policy decision as to what kind of survey l 25 was necessary to find your special needs people. ( Heritage Reporting Corporation { (202) 628-4888 l l h .-__-_____-___m-. _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ a.--.____ _ ___ -. _ ._ _ _ _ _ _ _ _ _ _ _ _
DONOVAN - CROSS 18123 1 This is a classic case. President Carter put FEMA fe~s
\
'-) 2 for good or for ill in charge of this. One of the reasons 3 was-that they had a special expertise in dealing with 4 emergencies. And it seems to me that what the NRC has told 5 us, if FEMA decides a certain kind of survey is the way to ;
i 6 find out how many handicapped, that's it. 7 MR. TRAFICONTE: Why did we have all that 8 discovery and all that testimony and all that cross-9 examination of Ed Thomas in the New Hampshire proceeding? 10 Why wasn't the determination and the position that FEMA 11 took, that there wasn't an adequate range of protective 12 measures of the New Hampshire beaches? Why wasn't that 13 given the same kind of protection that Mr. Dignan is now
/T 14 coming in and seeking across the Board apparently, without U 15 limitation, across the Board for the FEMA findings as to all 16 issues in contention?
17 I cannot distinguish the argument that has just I 18 been made to you. Cannot distinguish that legally from -- 19 or an interpretation of A(2) that says it's a conclusive l 20 presumption. I cannot distinguish that. 21 MR. DIGNAN: I can. 22 MR. TRAFICONTE: If the Board is prepared to rule l 23 in this line, we can certainly cut the cross-examination 24 quite short. Because this is a major part of what I intend l 25 to do, press on the nature of the review. It runs to ( Heritage Reporting (202) 628-4888 Corporation 1
DONOVAN - CROSS 18124
- L . weight. It would indicate that there really is very little 2 weight that should be given to the FEMA review because of 3 its very nature and proceed with our case.
4 But if I understand Mr. Dignan, it's really a 5 conclusive presumption. The Commission basically intended
' (i not to have litigation. It didn't intend to litigate it.
7 It intended to have FEMA come in, stamp it with an adequacy 8 finding and then it was over. i 9 That I have to say, I can't believe the Commission 10 intended. 11 MR. DIGNAN: The distinction on the Thomas cross-12 examination, I think I can articulate. If you go back and 13 review exactly how that cross-examination developed and 14 where it went,=it happened this way. I challenged out
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15 front, and I'm sure Mr. Flynn will concur in this, I 16' challenged out front the legal basis for the FEMA 17 determination that had been made adversely to my client. I 18 said that they were wrong on the reading of the NRC regs. 19 First of all, that testimony never became 20 testimony. It was a Voir Dire Examination. In examining 21- Mr. Thomas in the scope I was given to examine was in the i 22 framework that I was testing whether or not the FEMA 23 finding, so-called, that was going to be given on the l 24 sheltering issue was based on a correct interpretation of 25 the regs. And if you look at the cross-examination it went Heritage Reporting Corporation (202) 628-4888 L_ _ _____ _ _.__ _ _ __.__ _ _ _ - -
DONOVAN - CROSS 18125 2 And then I went into the RAC and asked whether the 3 NRC people.-- that's where I was really headed with that 4 cross -- agreed or disagreed with the interpretation. The 5 reason -- the whole Thomas thing exploded differently for 6 different reasons. It exploded differently because I 7 frankly got an answer I did not expect. And I think that 8 was apparent to everybody. 9 I expected to be told by Mr. Thomas that the NRC 10 people did not agree with his interpretation of the NRC 11 regulations, but that he as RAC Chairman had overruled that 12 judgment which he believed he was entitled to do. And he 13 may cn may not have done it. I'm not getting into.that. He 14 did not give me that answer, as you well know. He gave me a 15 little different answer and that set us down a whole other 16 trail. 17 But the fact of the matter is, the challenge into 18 the Thomas theory was not based on any factual matter. We 19 have never contended -- if you recall, we never objected to 20 the fact, as you keep bringing out and it's brought out 21' again and again in your appellate briefs the facts of the 22 situation that the site did not change before FEMA tested. 23 The FEMA decision changed when FEMA came around to 24 the different legal theory which is what the Applicants had 25 been pressing. And I'm sure Mr. Flynn will concur with me
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lg-( 1 on that,.which I had been pressing two years before we went 2 into hearing I had been arguing with him about that. And 3- that is a much different attack than an attack that would 4 have gone like this, well, Mr. Thomas, how much do you know 5 about health physics? i 6 I'm not saying there was never a question about 7 that. There was some red hot cross-examination before we l 8 were through. But that was not planned. We got down an 9 entirely different road with Thomas, as you well know,
'10- because of one answer or two answers that he gave me.
11 But in fact, the structure of even the Voir. Dire 12 was never designed to take the position that the way FEMA 13 had reached its decision was flawed because their guidance 14 was flawed. It was an attack on their legal position. The 15 legal position being their interpretation of a Nuclear 16 Regulatory Commission regulation. 17 I'm saying this, I hope I'm right. But I think 18 Mr. Flynn will concur with me that had been the consistent 19 position of the Applicants since Joe and I first met. And 20 he had to argue it both ways because at one point the agency 21 didn't agree with me and then finally they turned around and j 22 agreed with the position. 23 MR. FLYNN: I will certainly agree that you have 24 correctly identified the issues and the various positions as 25 they evolved. i Heritage Reporting Corporation (202) 628-4888 i
DONOVAN - CROSS 18127 3 1 MR. DIGNAN: That I submit is not the same kind of b 2 process we're involved here and that's why I am bringing up 3 this question. Maybe the Board's decision is yes. Each NRC l l 4 licensing board -- I think it's hard to sometimes remember 5 that the scheme under which we litigate the regulations are 6 a generic thing that govern every hearing, because here we 7 sit in Seabrook, the only hearing, some s'ay the last. But l 8 the fact of the matter is the regulation is designed for a 9 hearing system that contemplated many hearings going on by .
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10 many licensing boards. 11 I find it unbelievable that the Nuclear Regulatory 12 Commission, which had been made a major shift in some ways j 13 in responsibility because of the Carter dictate that FEMA 14 should take the lead, putting this extraordinary language
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15 into their regulation of rebuttable presumption, seriously 16 contemplated that in every licensing hearing before its 17 licensing board that we could relitigate the question of 18 whether FEMA knows how to do its job. 19 JUDGE SMITH: Well, let's be more specific about 20 it, because this indeed a very difficult problem. I've 21 pondered it before. 22 MR. DIGNAN: May I say one more thing, Your Honor, 23 in candor? 24 The one argument that goes against what I am 25 saying, and I admit it, is the Appeal Board decision on the , 1 () Heritage Reporting Corporation (202) 628-4888
1 I DONOVAN - CROSS 18128 ges g 1 20 percent rule.
'N' '/ 2 JUDGE SMITH: Well, yes, I was going to ask you 3 that very thing.
4 MR. DIGNAN: Yes. ; 5 JUDGE SMITH: They just threw -- 6 MR. DIGNAN: My answer to that is -- 7 MR. TRAFICONTE: Affirmed by the Commission. 8 MR. DIGNAN: No. 9 JUDGE S?.'ITH: No way. 10 MR. DIG?AN: That's the point. It was not 11 affirmed by the Commission. 12 MR. TRAFICONTE: Shall I say not reversed. 13 MR. DIGNAN: And it is not reversed by the 14 Commission. I at least -- 15 MR. TRAFICONTE: It's governing law at this point. 1 16 MR. DIGNAN: When we get to the 20 percent rule, 17 which we are going to, I guess, in front of the Appeal 18 Board, I'll tell you exactly how I plan to argue it. I plan 19 to argue it, one on the distinguishing matter the Board did, 20 which I think is the basis of which it gets up there. I'm l 21 going to argue, secondly, that if you don't agree with the 22 way the licensing board distinguished it, I want you to 23 reconsider it because you were wrong on the Shoreham case. 24 And if anybody says to me from the bench, which 25 they are liable to do, well, the Commission didn't reverse O Heritage Reporting Corporation ('] (202) 628-4888
DONOVAN - CROSS 18129 f-x, 1 this, I think there is a reason the Commission didn't 2 reverse them. The reason the Commission didn't reverse them 3 is they already knew what they were going to do with the 4 Shoreham case and there was no need to take that up. 5 Because the Shoreham ruling that ended Shoreham came down, I 6 don't know, two days later. 7 JUDGE SMITH: I think that that is a good example. 8 So I think what we have here is not only do we have to give 9 presumptive validity to FEMA's findings that when it comes 10 to matters of, we might just call it judgment, and this 11 particular survey could be, I think, a good example, 12 somebody had to decide, virtually subjectively, I guess, 13 shall you make a survey on calendars, on mailing lists; ( ) 14 shall you put an ad in the paper; or should not knock on 15 doors covering every single door; or somewhere in between. 16 And there is no right nor wrong, because no way is 17 guaranteed to catch everybody. Some ways will catch more 18 than others. There is no-standard of how many have to be 19 captured by the survey. Somebody has to decide. 20 In the areas where FEMA has been given the lead by 21 the President, FEMA's decisions along those lines should be 22 given presumptive validity. 23 The 20 percent standard is very good. The 20 24 percent standard should be the standard, in my view, because 25 there is no other standard. There is no one better one, and Heritage Reporting Corporation [' ') (202) 628-4888
DONOVAN - CROSS 18130
- p. 1 they picked it out and applied it.
\) 2 MR. TRAFICONTE: But Your Honor --
3 JUDGE SMITH: But -- 4 MR. TRAFICONTE: --the Appeal Board ruled the 5 other way. 6 JUDGE SMITH: I know. 7 MR. TRAFICONTE: The law is that when FEMA comes 8 in, for example, and I think this is a very good example. 9 I just want to note for the record that we have l 10 had a long day already and not a lot of cross-examination.. 11 And I don't consider myself responsible for that. I do 12 think this is fairly fruitful. 13 MR. DIGNAN: I'll stipulate to that. ()
+,g 14 MR. TRAFICONTE: All right, good. I want this to 15 be remembered when we are in the next week and it's 16 interminable.
17 MR. DIGNAN: I'm going to stipulate it in a 18 quantitative not a qualitative sense, though. 19 MR. TRAFICONTE: All right. 20 I think this is a very good example, and it's very 21 close to the situation of the 20 percent planning basis for 22 monitoring evacuees. 23 Mr. Donovan is absolutely right that FEMA has a 24 guidance memorandum that provides a type of survey vehicle. 25' He is absolutely right about that. There is no dispute. i Heritage Reporting Corporation (202) 628-4888 l l
i DONOVAN - CROSS 18131 1 Nor is there any dispute, frankly, that the Applicants, they 2 would if they were rational, employ that survey vehicle, 3 because that's the way you get FEMA to judge it to be 4 appropriate and adequate. I mean, QED on that. 5 The issue on the table, however, is the structure 6 of licensing, for good or for ill, is that the Interveners 7 are free to file contentions that identify issues in the 8 standards, challenge the adequacy of the planning, and go 9 forward to try to show that the existing planning is not 10 adequate. 11 Take the survey vehicle, for example. I have our 12 trial brief open to page 42 where the issue in JI-48 is 13 identified as, "Whether the survey conducted by the 14 Applicants reached and identified those members of the 15 population to whom it was targeted. Whether the survey 16 elicited information from the residents it did reach which 17 could be used to adequately assess necessary special 18 assistance." 19 It's a challenge to the reach of the survey. It's 20 a challenge to the content of the survey for eliciting 21 sufficient information. 22 And I should just add, the structure as we now see 23 it of the proceeding is that rebuttable presumptive validity 1 24 attaches to FEMA's finding on this very question. The 25 survey vehicle is presumptively found to be adequate. l l Heritage Reporting Corporation (202) 628-4888
I DONOVAN - CROSS 18132 fs 1 Interveners are in here challenging that. We filed N~,), 2 testimony, in part. Now we are trying to probe and explore ! 3 the basis for the FEMA determination that the survey vehicle J 4 was adequate. 5 And it turns out the answer is, we found it I 6 adequate because it's in accordance with our regulations. 7 And the next step, just as it is in the 20 percent planning 8 basis analysis, the next step is, what's the basis for 9 FEMA's determination that that's an adequate survey vehicle. 10 They have to defend that. They have to. If they are not 11 prepared to defend that in the litigation, then there 12 shouldn't be a rebuttable presumption. And I think Mr. 13 Flynn would agree with that. 14 MR. DIGNAN: Well, prescinding from the effect of 15 rebuttable presumption -- 16 MR. TRAFICONTE: If given an opportunity. 17 MR. DIGNAN: -- because I think it's two different 18 things. 19 MR. TRAFICONTE: Apparently he will not be given 20 such an opportunity. 21 MR. DIGNAN: I keep asking, and I hope I'm not 22 boring you with a rhetorical question. Could it have been 23 the intention of the Commission to permit a FEMA -- let's 24 take this specific one -- a FEMA judgment that this kind of 25 survey gets the job done to be litigated at every single
'N Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18133
.fs 1 licensing case before every single licensing board?
2 'I can't conceive that was the Commission's 3 intention. It makes no sense. They certainly don't allow 4 generic issues to be over and over and over and over again 5 on the issues that come in with their own scope. They do it 6 differently there. They come down with a regulation, but 7 the policy of the Commission is not to relitigate and 8 relitigate'and relitigate and relitigate that kind of a
.9 question in every single licensing case.
10 And even if one could point to instances, which 11 you can,~ were certainly some technical issues had to get 12 fought out a lot of times before they went away.- ECCS was a 13 classic. That.one went around the barn in every case before 14 the rulemaking. There is a couple that got left over in the V() 15 area of major accidents in refueling and so forth. But the 16 fact of the matter is here they took this thing, and as I 17 say, used unique words: rebuttable presumption. 18 Now, maybe Mr. Traficonte, I can sympathize with 19 his saying, Dignan's got that rebuttable presumption and is 20 riding it for all it's worth. And he's right, I'm trying 21 to. But he's trying to ride it just as hard the other way, 22 because what he's trying to say is, I can come in here and 23 unless FEMA lines up a phalanx of people in every single 24 discipline, I get rid of the rebuttable presumption right 25 away because they haven't got the guy who can defend the g Heritage Reporting Corporation N (202) 628-4888
l DONOVAN - CROSS 18134
-w 1 policy judgment which this man used to review the plan, and
it is the plan that the Commission has talked about. It 2
3 says it shall be based upon a review of the plan. 4 Now maybe the Board should certify a question 5 there. 6 MR. TRAFICONTE: I think the Board might. 7 MR. DIGNAN: I don't know. l 8 MR. TRAFICONTE: I was thinking the same thing. 9 MR. DIGNAN: Maybe we should proceed on here. j 10 Because if I am right, and I think Mr. Traficonte will agree 11 with me because I'm' going to give him the reverse. If I am 1 12 right, this is a very short hearing. If I am wrong, and he 13 is right, it's a very long hearing. /~'s 14 MR. TRAFICONTE: If Mr. Dignan is right -- U And if there is ever something that 15 MR. DIGNAN: 16 maybe ought to go up to the Commission, or has to go through 17 the Appeal Board, I guess. 18 MR. TRAFICONTE: Let's try the Appeal Board. 19 MR. DIGNAN: Yes, and let the Appeal Board have a 20 crack at it, and the Commission can or cannot take it up 21 after that. But maybe a certified question ought to go up 22 because there is a -- you will agree with me it's a real 23 short hearing if I'm right, and I agree with him it's a real 24 long one if I'm wrong. 25 MR. TRAFICONTE: You know, on rare occasions I () Heritage Reporting Corporation (202) 628-4888 )
DONOVAN - CROSS 18135 g i find myself agreeing with Mr. Dignan. This is on the ( 2 process, on the procedural point. This is really a 3 reargument on the admission of the contentions. 4 MR. DIGNAN: That's correct. 5 MR. TRAFICONTE: He's rearguing that you shouldn't 6 have admitted these contentions, and there are many, many of
? them. And the basis is FEMA has found it's adequate. The 8 regulation gives that presumptive validity. Interveners 9 can't challenge FEMA's basis. It's a good as gold, you 10 know, and that's the end of it.
l 11 And I would have to say I can't see exactly how we 12 would be able to proceed and challenge this presumption in 13 light of the way Mr. Dignan is reading 5047 (A) (2) . (~' 14 MR. DIGNAN: Your Honor, Mr. Traficonte makes a
- %.))
15 good point. In a way I am rearguing the admission of a lot 16 of the contentions. But the contentions, I keep reminding 17 everybody, got admitted in July. At that time there was no 18 FEMA finding, and, indeed, the Board had a much different 19 view on how much I could rely on the rebuttable presumption 20 at that juncture before the FEMA finding actually was in 21 hand. 22 MR. TRAFICONTE: Well, wait a minute. The Board l 23 has no basis right now to determine it has any more basis l l 24 for relying on the FEMA -- i l 25 MR. DIGNAN: No , no, there was a different view as l l g / Heritage Reporting Corporation i (202) 628-4888
l DONOVAN - CROSS 18136
<s 1 to what my burdens were of going forward before the 2 rebuttable presumption actually came down. If you recall, 3 there was an exchange up there, and this was the business if 4 I had to earn the rebuttable presumption. And I was saying , 5 it got earned finally when FEMA's actually came down. And 6 you recall that exchange.
7 All right. The second thing that has happened of 8 significance to the contentions is the New Hampshire 9 decisions come down. I mean, that's another aspect. 10 MR. TRAFICONTE: What does that have -- that 11 doesn't have anything to do with these hearings. 12 MR. DIGNAN: Hang on, hang on. 13 What I am saying is Mr. Traficonte is, and if the l 14 Board wants to stop me for that reason, he's quite right. 15 What we are really doing is rearguing the -admission of a lot 16 of contentions. But I think, whether you look at it that 17 way, or you look at it as something that ought to be 18 certified to the Commission, or however you do it, I think 19 it's a worthwhile exercise because I do think we are going 20 to engage in an awful lot of litigation here on the road 21 that I see Mass AG going down, not that I think there is 22 anything wrong with his attempt to do it. But the way he's 23 going, there is going to be some lengthy litigation over 24 matters that I think either, (a) aren't litigable because of 25 this regulation; or (b) are res judicata in fact. ( Heritage Reporting (202) 628-4888 Corporation
?
DONOVAN - CROSS 18137 1 MS. CHAN: Your Honor, the Staff would like to 7~ 2 note that the particular line of questioning of Mr. Donovan 3 is probing of the guidance, of the FEMA guidance and whether 4 or not that was properly applied or whether the guidance has 5 merit seems to be similar to a challenge to FEMA's rules, 6 regs, guidance, whatever. And in NRC practice I know that 7 there is a proper forum for that, and that's for a rule 8 change. But I don't know the weight or the status of the 9 guidance or the rules that Mr. Donovan is relying on. But 10 it seems that this is really not the proper forum to be 11 challenging the standards that are applied in the evaluation 12 of an emergency plan, or FEMA's report, or whatever. 13 MR. TRAFICONTE: Your Honor, with all due respect (~' 14 to counsel for the NRC staff, that is directly, directly V) 15 contrary to existing precedential law before the NRC in ALAB 16 905. The statement that counsel made is directly contrary 17 to existing law. 18 905 and the underlying Board ruling that it is a 19 review of involved directly a challenge to the policy and 20 the support for the -- 21 MR. DIGNAN: 905 discussed the subject -- 22 MR. TRAFICONTE: Let me just finish. 23 MR. DIGNAN: 905 discussed it. 24 MR. TRAFICONTE: Let me finish. The litigation 25 below as well as the Appeal Board discussion at length on Heritage Reporting Corporation (202) 628-4888
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DONOVAN - CROSS 18138 1 review was that a substantive discussion of the 20 percent
~
2 planning guidance, the basis for FEMA's adoption of 'that, 3 the challenge to that basis that the Interveners made at { 4 Shoreham, and the incapacity during the litigation of FEMA 5 to defend it. That's what that was. And I heard NRC staff 6 telling you that -- she's telling that you that here, when 7 I'm trying to do something at a much more modest level, that 8 that's an impermissible challenge and not to be entertained 9 before an NRC licensing board. I think that's directly 10 contrary to law. 11 MS. CHAN: Your Honor, the Staff would like to 12 clarify. I didn't say that the " challenge" to FEMA's 13 regulations. I said if this were an NRC regulation that you () 14 15 were.trying to undermine by saying that the regulation or the guidance was improperly drafted, and so that his 16 evaluation could no longer be accurate. If the FEMA guidance 17 or rule that he is referring to has the same weight as an 18 NRC regulation, that we would be in the wrong forum here. 19 MR. TRAFICONTE: Did you say "if it does?" 20 MS. CHAN: Yes, I said "if it does." 21 MR. TRAFICONTE: Yes. We would really be in a 22 Kafkaesque environment for the following reason. l 23 If counsel for the NRC staff were right, not only 24 would a rebuttable presumption attach to the FEMA 25 determination, but the basis for the determination, in light r Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18139
-)
1 of the guidance memoranda and its other regulations, could 2 not be pressed or probed. So then I would say the QED and 3 the case is over, because we would have both our hands tied 4 behind our back. They would have a rebuttable presumption 5 on adequacy with no -- we would not be permitted into the 6 litigation to challenge them. So that can't be right. I 7 mean, that argument dies on the vine. That can't be right. 8 Not only is it logically inconsistent with the 9 notion of a rebuttable presumption, but again, I mean, this 10 Board may not like 905, and I know Mr. Dignan doesn't like 11 it because he's told me that, and I'm not talking out of 12 school. 13 MR. DIGNAN: I haven't told you I didn't like 905. [~'i 14 MR. TRAFICONTE: Well, you did, you intimated it. d 15 MR. DIGNAN: I told you that I thought 905 was 16 wrongly decided. 17 MR. TRAFICONTE: Okay. Well, I assumed from that 18 that you didn't like cases that were wrongly decided. In 19 any event -- 20 MR. DIGNAN: Depends on which way they go, doesn't 21 it? 22 (Laughter. ) 23 MR. DIGNAN: I once as a young lawyer came back 24 from an argument before a brand new Superior Court judge, 25 and one of my senior mentors said to me, how did it go; and Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18140 1 I went on on a long peroration on what a wonderful new judge l l 0 2 this was, he had been very polite and very interested in the l 3 argument and very courteous. He said, how did you make out. 4 And I said, I won. And he says, that's the way I judge that 5 too. 6 (Laughcer.) 7 l 9 10 11 12 13 O 15 16 17 18 19 20 21 22 23 24 1 25 Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18141 f g 1 MR. TRAFICONTE: In any event, 905 is the law. It
\# 2 binds you at this point. And to go back, I don't know if it 3 would be convenient or beneficial to certify. I think we 4 would have to struggle with what the question would be. But 5 if I take Mr. Dignan's argument, I think certification may 6 well be appropriate.
7 I certainly agree with him that if he's right, and 8 if he should prevail on his argument, this would impact -- 9 would have a dramatic impact on the course of this 10 litigatic . I'1.1 stipulate to that. And that's one of the 11 standards for certification. I think he's right on that 12 point. 13 I think he's completely wrong on the merits, but I 14 think he's right on that procedural point. 15 MR. FLYNN: May I make a few brief points? 16 MR. TRAFICONTE: Well, let me just finish, Joe, 17 briefly. 18 Just so that you can get the sense of the 19 investment the Interveners have on the issue, we will not, 20 and you will have to basically shut us out and rule on this 21 matter to keep us from cross-examining in this mode, because 22 this is the thrust of my cross-examination of Mr. Donovan, 23 bott now as well as when he returns, if we ever get done 24 with his first appearance, whenever he returns again on the 25 exercise. This is the nature of the probina and exploring I () - Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18142
- 1 the-Interveners intend to do of the FEMA position.
2 MR. DIGNAN: The reason I'm reading 905 -- I am 3 looking at 905, because I don't want to make a statement 4 that's wrong and I haven't reread it. But my recollection 5 of 905, and my quick look at it is confirming that, it was 6 never argued tu) the Appeal Board. If it was, they never
'7 addressed the whole question of what the rebuttable 8 presumption played. They took it up as though there was an 9 issue on the floor as to whether 20 percent was enough. The 10 only evidence these guys put in was the Krimm memorandum, 11 and that was not good enough. Bingo, it wasn't supportive.
12 I don't think it was ever argued to them what 13 we're talking about now, or what this licensing board . 14 suggested in its decision as one of the basis of its ruling 15 that that thing carried a rebuttable presumption with it. 16 I may be wrong. I can find out and represent I 17 will find out as to whether it was argued to them or not, 16 because I can call the LILCO lawyers and find out. But I 19 don't recall in the decision any discussion of the nature 20 that, for instance, is in this Board's prior ruling about 21 the effect of the rebuttable presumption on FEMA decisions, 22 because I think it came up -- if I am correct, the LILCO 23 case didn't come up the way this one is. There wasn't a 24 whole bunch of findings in the can bv FEMA and I sign off a 25 report when that thing was litigated. [ Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18143 s 1 JUDGE SMITH: Well, it's the same thing. It was 2 the Krimm memorandum, and it was the same in both cases, 3 wasn't it? 4 MR. DIGNAN: Yes. No, it was the same memorandum 5 but I don't think -- the reason I don't think the rebuttable 6 presumption got any play it. the decision was somebody -- one 7 of the government lawyers who maybe was around in that, my 8 understanding is that issue, when it was before the 9 licensing board, it was not in the setting we are in here 10 now where FEMA had a bunch of reports out and a final 11 finding over at the NRC on Shoreham. 12 Am I right on that? 13 MR. TRAFICONTE: What difference would that make. 14 FEMA had -- 15 MR..DIGNAN: Because I don't think LILCO lawyers 16 were pressing the rebuttable presumption at all. I don't 17 think anyone was thinking about it in that setting of LILCO. 18 MR. TRAFICONTE: Well, then the LILCO lawyers must 19 have been asleep at the wheel because -- 20 MR. DIGNAN: No, no. 21 MR. TRAFICONTE: -- they had a rebuttable 22 presumption attaching to a finding even without a global 23 finding. 24 MR. DIGNAN: They didn't have a finding. They 25 didn't have a finding. i Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18144 1 MR. TRAFICONTE: They had a determination by FEMA 2 that 20 percent of the EPZ population could be monitored. 3 That's obviously the case. 4 MR. DIGNAN: They had the memorandum, and like us 5 they used it as their planning basis. But there was no FEMA 6 finding on their plan. 7 I'm not suggesting.this leads to a result, John. 8 I'm suggesting that I'm not sure the Appeal Board ever had 9 before it the issue that we're talking about now, which is 10 what does this regulation do to -- what does this regulation 11 mean in terms of how deeply you can attack FEMA. I don't 12 think that was before them, because it was never argued to 13 them one way or the other. 14 I'm sorry, Mr. Flynn. 15 MR. FLYNN: Thank you. 16 We certainly have come a long way from the 17 original question which is the adequacy of the survey 18 methods. And I thought the issue was simple until we got 19 into the argument that we just heard. 20 Mr. Traficonte and I have had numerous discussions 21 over a long period of time a'uout how the issues in this case 22 might be simplified. And we came very close to a 23 stipulation but for a variety of reasons we didn't quite get 24 there. But one of the things that we agreed on was that we 25 do indeed have different understandings of what the word () Heritage Reporting Corporation (202) 628-4888 i i .__- - _ - -
DONOVAN - CROSS 18145 f- . 1 " adequate" means. And that when FEMA uses the term in a 2 finding, it is a representation that in FEMA's judgment the 3 requirements of NUREG-0654 have been complied with. And on 4 that basis it is reasonable to find that protection can be 5 afforded the public. 6 What I understand the Interveners to be pressing 7 in their position on the inadequacy of the SPMC is that the 8 level, the quantitative level, if you will, of protection 9 afforded the public is not enough to justify the issuing of 10 a license, and that's a different question. 11 Now, I think what Mr. Traficonte was getting at in 12 his line of questioning was the finding that we are 13 defending is a limited one in the sense that I've explained. 14 Now, as Mr. Donovan has already testified, there 15 is a little more to it than that because of the technical 16 assistance effort and the enhancements to the plan which 17 were brought about as a result of the technical assistance 18 and the cooperativeness of the Applicant, which is a way of l' [ 19 saying again that we have not ignored the issues that the 20 Interveners are raising. 21 My point is I don't think there is a great deal of 22 dispute, or it should be so difficult to establish that our 23 finding of adequacy means something less than a specific 24 quantitative standard has been met, whether it's evacuation 25 times, whether it's sheltering factors or whether it's the () Heritage Reporting Corporation (202) 628-4888 1 _ _ _ _ _ _ _ _ _ _ _ -
DONOVAN - CROSS 18146 6~ 1 number of people who are identified in the survey. 2 And I think if we would all accept that 3 understanding, we could move along a little faster. 4 MR. TRAFICONTE: It depends on what the 5 understanding is. 6 Are you prepared.to stipulate that,.with regard to 7 the number of handicapped in the EPZ, FEMA is not prepared 8 to say whether 550 is within 10, with a hundred or within a. 9 thousand of the actual number of handicapped in the EPZ7 10 HR. FLYNN: I think it's fair to say that -- 11 MR. TRAFICONTE: If you stick to that, I think we 12 can move along very quickly. 13 MR. FLYNN: I think it is fair to say that we have
/'T - 14 not formed a judgment as to the correlation between the b 15 numbers of people who may need assistance and the number of 16 people identified by the survey, and I will check that with 17 Mr. Donovan.
18 Is the statement I have just made accurate, in 19 your opinion? 20 THE WITNESS: (Donovan) Yes, it is. I would 21 quantify that, that -- 22 JUDGE SMITH: What is the statement? Restate what 23 you believe you are saying? 24 MR. FLYNN: What it -- 25 JUDGE SMITH: Let me hear him say it. O Heritage Reporting Corporation (202) 628-4888
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. 1 THE WITNESS: (Donovan) I believe Mr. Flynn asked i
2 me that we will state, or that I-am trying to state that the l 3 survey produced X number of people who said they needed 4 help, and that number is different probably than the number 5 of total handicapped in the Massachusetts portion of the 6 Seabrook EPZ. And I -- 7 JUDGE SMITH: But you said there is no I 8 correlation, however. 9 THE WITNESS: (Donovan) Yes. 10 JUDGE SMITH: Did you go that far? 11 THE WITNESS: (Donovan) Yes, because there is 12 another factor that hasn't been discussed, because he 13 doesn't ask me about the nature of my review. He keeps 14 challenging my -- , 15 MR. TRAFICONTE: Your counsel asked you. 16 THE WITNESS: (Donovan) -- credibility. The 17 issue is that FEMA has found a number of handicapped people 18 who do not consider themselves handicapped. And just 19 because someone lives in a household that has a handicap 20 that they do not consider themselves, (a) handicapped; or 21 (b) requiring help. 22 MR. FLYNN: Excuse me. 23 Your Honor, I didn't say that there was n'o 24 correlation. I said we had no position on that. 25 MR. TRAFICONTE: No position as to whether there l / Heritage Reporting Corporation
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I DONOVAN - CROSS 18148 L f-s 1 is a correlation?
'" 2 MR. FLYNN: We haven't checked that. That was not
<3 part of our --
4 JUDGE SMITH: That's not what I heard him testify 5 to. 6 MR. TRAFICONTE: I thought he just said that there 7 was no correlation. .. 8 Your Honor, this is the crux of the matter. If 9 there is no correlation, I think we are at the point where 10 you said this morning that if it comes out with a check list ! 11 or a clipboard, and he just -- there's a survey. Yes, 12 there's 550. I'm making no judgment that this 550 out of a 13 thousand, or 2,000 or 3,000. If that's the nature of the . 14 FEMA review, I think as a matter of law they can't make 15 their prima facie case on adequacy as to JI-48 with that. l l 16 And I think that would be worth certifying. l 17 MS. CHAN: Your Honor, it sounds like they are l 18 speaking about two different things. 19 The survey is supposed to determine the number of 20 people who are handicapped or has special needs and need l 21 help. There may be a number that Mr. Traficonte is thinking ! 22 about. There may be twice that number that maybe have some 23 kind of handicap and be mobility-impaired but they don't 24 think they need help because their family is there, or they 25 can drive, or they may be deaf but they can still mobilize l O Heritage Reporting Corporation (202) 628-4888
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DONOVAN - CROSS 18149 l' 1 themselves. So I think that they might be talking about two .t 2 different things. 3 JUDGE SMITH: Why don't we just for our education, 4 why don't we start, first, with what is the evaluation 5 criterion that we're talking about. 6 MR. TRAFICONTE: With regard to the survey 7 requirement? 8 JUDGE SMITH: Yes. 9 MR. TRAFICONTE: Mr. Donovan knows that better 10 than anybody in the world. 11 THE WITNESS: (Donovan) J-10-D. 12 JUDGE SMITH: Where? 13 THE WITNESS: (Donovan) J-10-D, which is on page 14 78 of 180. 15 JUDGE SMITH: I'm looking at NUREG-0654. 16 THE WITNESS: (Donovan) I was in our report on 17 the plan. 18 JUDGE SMITH: All right, then the report on the 19 plan. What page is it? 20 THE WITNESS: (Donovan) Of the joint bound 21 effort, page 78 of 180. 22 JUDGE SMITH: All right, that's J-10-D, and let's 23 read it. "Means for protecting those persons whose mobility 24 may be impaired due to such factors as institutional or 25 other confinement. These means shall include notification, () Heritage Reporting (202) 628-4888 Corporation
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DONOVAN - CROSS 18150 r- 1 support and assistance in implementing protectiva measures 2 where appropriate." 3 So then let's move on to that aspect of FEMA which 4 determined that a survey approach would be satisfactory. l 5 MR. TRAFICONTE: Would identify -- l 6 JUDGE SMITH: As far as identification so that you 7 can notify. 8 MR. TRAFICONTE: Yes, l 9 MR. FLYNN: That would be in the guidance. l 10 JUDGE SMITH: That would be in the guidance. . i 11 THE WITNESS: (Donovan) Yes. 12 JJDGE SMITH: Now, what's the guidance? 13 THE WITNESS: (Donovan) There are two documents, 14 sir. There is Guidance Memorandum 24 which deals with [G) 15 planning for handicapped persons. And there is another 16 document referred to as FEMA REP 11 which -- 17 JUDGE SMITH: Now Guidance Memorandum 24. What is 18 a guidance memorandum? Is that a formal FEMA -- 19 THE WITNESS: (Donovan) A form of FEMA 20 communications from FEMA headquarters to FEMA regions and 21 gives them guidance on how to interpret and apply -- 22 JUDGE SMITH: And under whose authority is a 23 guidance memorandum issued? 24 THE WITNESS: (Donovan) From FEMA headquarters. 25 JUDGE SMITH: Under the director? () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18151' g" 1 THE WITNESS: (Donovan) Associate d.4 rector for 2 state and local programs. , 3 JUDGE SMITH: Presidential appointee? The man who 4 testified in our hearing here? , 5 THE WITNESS: (Donovan) Yes. 6 JUDGE SMITH: Presidential appointee, confirmed by 7 the Senate, a policymaker. 8 THE WITNESS: fDonovan) That's correct, sir. 9 JUDGE SMITH: And he made that one of the 10 standards in that guidance memorandum. 11 What other thing do you have? 12 THE WITNESS: (Donovan) There's a document known 13 as FEMA REP 11, which was published in draft and finalized () 11 4 15 through Federal Register notice and request for comment. That document refers to how we review these documents of 16 which this survey form is contained therein. i 17 JUDGE SMITH: And that's in FEMA REP ll? 18 THE WITNESS: (Donovan) Yes, sir. 19 JUDGE SMITH: This is a legal question, but do you 20 regard FEMA REP 11 as a regulation? 21 MR. FLYNN: No , Your Honor. It would have the 22 same level of formality as NUREG-0654, yes. ( 23 JUDGE SMITH: And it is a determination in this l 24 instance, I would imagine, by the director himself. f l 25 THE WITNESS: (Donovan) Yes, and again, it's a l Heritage Reporting corporation ([]) (202) 628-4888 l
l._ DONOVAN - CROSS 18152 1 determination like a Nuclear Regulatory Commission I- '2 Regulatory Guide.
. 3 JUDGE SMITH:- Reg guide.
4' THE WITNESS: (Donovan) An appropriate means to 5 satisfy the criteria;. specifies the means and the mechanism. 6 JUDGE SMITH: And it went out for notice and 7 comment.- 8 THE WITNESS: (Donovan) Yes.
. 9 JUDGE SMITH: In addition.
10 THE WITNESS: (Donovan) Yes.
~
11 JUDGE SMITH: And that was issued also, as I 12 stated, by the director of FEMA. 13 THE WITNESS: (Donovan) By the associate director 14 for state and local preparedness, Grant Peterson. Well, his
'15 predecessor. I don't believe he was in office when that 16 document was issued. The same level.
17 JUDGE SMITH: And that is a very formal document. 18 THE WITNESS: (Donovan) Yes. It has more 19 formality than a guidance memorandum because it went out for 20 public comment through the Federal Register. 21 JUDGE SMITH: And could you be more specific about i 22 how the survey approach is identified? I mean, is it just 23 said that that is a -- 24 THE WITNESS: (Donovan) Yes, I could be. Again, 25 to start off with this criteria element, this says that 1 1 Heritage Reporting Corporation O( (202) 628-4888 i
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DONOVAN - CROSS 18153 1- offsite plans, offsite response organization plans implement 2 protective measures for the plume shall include means to 3 protect those persons, those whose' mobility may be impaired. 4 So in the reverse, you have to determine whose 5 mobility may be impaired. And in doing so, in REP.11 as in E Guidance Memorandum 24, we state that a survey, in. s 7 . conjunction with the annual survey, in conjunction with the 8 annual mailing of the public education material is an 9 acceptable means of identifying that data base. And this 10 document discusses that, and I'll be happy to read in into 11 the record, if it pleases the Board, what the paragraph 12 says. 13 JUDGE SMITH: All right. 14 THE WITNESS: (Donovan) It says, "One of the most 15 common ways of making this assessment," my comment now, the 16 assessment of the people who need help, "is by using a self-17 identification card distributed with the public information 18 materials. Besides the methods under demographics, other 19 source of data are listed'in Guidance Memorandum 24. These 20 resources include national organizations for different 21 groups, handicapped,", et cetera, et cetera. 22 And basically it says that you can use a survey to 23 identify this data base. 24 JUDGE SMITH: I'm going to ask you just to do 25 that, read it again, say it again. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18154
~s 1 THE WITNESS: (Donovan) Sure. One of the most 2 common ways of making this assessment -- well, let me read 3 the preceding paragraph which would maybe put it in better 4 context.
5 "An assessment should be made of the number and 6 types of handicapped and disabled persons living in the area 7 and their impairments: sensory, movement or mental 8 emotional. A system to identify such individuals should be 9 developed and maintained, keeping in mind the need for 10 limiting access to the information for reasons of privacy. 11 "The results of that assessment will indicate the 12 need, if any, to provide information on at least an annual 13 basis in a format appropriate to the specialized emergency 14 preparedness requirements, for example, for reaching those 15 .who might have vision impairments. 16 "One of the most common ways of making this 17 assessment is by use of the self-identification card 18 distributed with the public information materials." > 19 That was the card I showed you earlier that was in 20 the calendar. 21 And it says there are other means to build and 22 quantify this data base. The next couple of sentences point 23 you. You can look at Guidance Memorandum 24 which says that 24 one should try to network with the special groups who . 25 provide services to these people, special needs and () g j Heritage Reporting Corporation i (202) 628-4888
l DONOVAN - CROSS 18155 l 1 handicaps and build and quantify your data base. 2 JUDGE SMITH: As an aside, do they ever cross- ) 3 . check the results of such surveys against the membership 4 list, or the client list of these special organizations as a 5 validating process? 6 THE WITNESS: (Donovan) Yes, that's a validating 7 process, and that is one of the ways suggested. I 8 In this particular case -- 9 JUDGE SMITH: As suggested in there? 10 THE WITNESS: (Donovan) Yes. i 11~ MR. TRAFICONTE: Your Honor, isn't that a probing? 12 I hate to interrupt it because you are asking the questions 13' that I would ask. Aren't you doing pretty much exactly what l / 14 Interveners would be seeking to do? Test and probe the 15 basis for these policy memoranda to determine what range of 16 accuracy they might have. It seems like a very natural, 17 almost necessary process. 18 JUDGE SMITH: Yes, but it's also a different 19 concept that we are getting to right now. 20 I was trying to determine two things: how 21 official and how rational the process was. 22 j 23 24 L 25 l l Heritage Reporting Corporation (202) 628-4888 l l l
l DONOVAN - CROSS 18156 f 1 JUDGE SMITH: I want it on the record here because 2 I think we may be certifying it up and I just want to have a 3 fairly good record so we know what we're talking about. 4 (The Board confers.) 5 JUDGE SMITH: We have no way of knowing if other 6 approaches to this identification method were considered and 7 rejected? 8 THE WITNESS: (Donovan) No. I testified contrary 9 to that. That I met with the people who were responsible 10 for building this data base and discussed the means that 11 they employed. And they attempted to solicit the 12 cooperation of these special groups. 13 JUDGE SMITH: No. What I mean is back at FEMA 14 headquarters? 15 Is there an overall standard of success that must 16 be met when you're trying to identify special needs? 17 Population? 18 THE WITNESS: (Donovan) The standard implied in 19 the criteria that we use in reviewing these plans is that 20 they made a good faith effort and they attempted through a l 21 means such as a survey to establish this data base. 22 JUDGE SMITH: I would read the evaluation i 23 criterion as -- we could read into it -- means for 24 protecting not some of the persons, not many of the persons, 25 not most of the persons, but the objective is to reach O Heritage Reporting Corporation (202) 628-4888
l DONOVAN - CROSS 18157 7g 1 perhaps almost all of them within the realm of reasonable 2 human endeavor? 3 THE WITNESS: (Donovan) I think the objective is 4 to offer assistance to those who may need assistance. And 5 one of the issues that was clear to us and is discussed in 6 other parts of the guidance memorandum is one of the first 7 aspects of dealing with handicapped . individuals as a group i 8 and as subgroups within that group, is to make them aware 9 that someone is willing to help them in the event there is 10 an emergency. 11 JUDGE SMITH: That's virtually everybody? 12 THE WITNESS: (Donovan) Right. 13 And then when you attempt to contact all of the
/\ 14 communities, those who perceive a need for help then should U 15 be offered assistance if they request it.
16 So again, the review looked at the efforts they 17 made to offer assistance and what they did with those 18 results. They offered to help through a survey. They got 19 results back. They quality assured to follow-up with these 20 individuals and through other means to build upon their data 21 base how many people were out there that needed help. Which 22 as I said earlier, is a subset of the larger number. And I 23 have no means of quantifying how large the number is. All 24 we do know is that they made a good faith effort like all 25 the other licensees throughout the country. And state and O Heritage Reporting Corporation (202) 620-4888
DONOVAN - CROSS 18158 ~g3 1 local governments are engaged in this type of planning to 4 2 identify and offer assistance and help for those who may 3 need it in the event of an emergency. 4 MR. TRAFICONTE: If I just -- and this might be a 5 helpful additional point, Your Honor. If you want to mull 6 this over, I would refer you to page 47 of our trial brief l 7 where we describe the testimony we filed on February 21 of l 8 Dr. Dillman who is a survey expert, as to the inadequacies 9 in the very same survey vehicle. 10 JUDGE SMITH: What does Dr. Dillman know about the 11 objectives of the survey? 12 MR. TRAFICONTE: Dr. Dillman is testifying with -- 13 JUDGE SMITH: Did he use to work at FEMA?
/~N 14 MR. TRAFICONTE: Pardon me?
15 JUDGE SMITH: Did Dr. Dillman use to work at FEMA? 16 MR. TRAFICONTE: No. 17 JUDGE SMITH: What will he testify to? 18 MR. TRAFICONTE: He will testify that the survey 19 vehicle was inadequate. 20 JUDGE SMITH: For what? 21 MR. TRAFICONTE: For forming the basis of the 22 judgment that almost all of those who needed -- 23 JUDGE SMITH: So he accepted that was a standard, 24 too, almost all. 25 MR. TRAFICONTE: Our standard would be all.
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DONOVAN - CROSS 18159 ,-- 1 JUDGE SMITH: All. Every one. Every last one. ' 2 MR. TRAFICONTE: The point is, every handicapped 3 person that would need assistance should be identified. 4 -Yes. 5 MR. DIGNAN: You see, Your Honor, this is -- and I 6 know we're taking time from cross, but at least I think it's 7 worth it. This is some of the basic -- 8 MR. TRAFICONTE: What cross? I can't remember 9 doing any cross. 10 MR. DIGNAN: This is some of the basic philosophy 11 of the case that worth shaking out. The Attorney General's 12 office in this case has pressed arguments which essentially 13 come down to, as I said in my opening statement, they want (~N 14 perfect safety. They want perfect everything. 15 Now on the notification of the handicap and take 16 it out of the pejorative sense of this case and this 17 setting. In the old days when the emergency planning zone 18 didn't exist and you had to demonstrate that the LPZ was 19 handled, we used to have some litigation on that. It wasn't 20 as long and it wasn't as time consuming. 21 But inevitably somebody would some time ask, what 22 are you going to do about the person who you come up, with 23 whatever scheme we had to notify people and it was a much 24 smaller area then, and they say, I'm not going to go. And 25 the inevitable answer was, you know, if they're not going to O (j Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18160 7
-w 1 go we're not going to put a gun at their head and say go. \-
2 I mean, it's just like that famous case of that 3 fellow named Truman out at Mount Etna who was apparently 4 warned and refused to leave. 5 MS. CHAN: Mount St. Helen. 6 MR. DIGNAN: Mount St. Helen or whatever it was. 7 And he refused to leave. The Government of the United 8 States, a great constitutional scholar said that there are a 9 lot of basic rights and one of them is the right to be j 10 stupid. 11 And if somebody is sent a notice that says, please 12 identify whether you're going to need help in this kind of a 13 situation, and for whatever reason they don't respond. And 14 I'm not saying they're all stupid, it may well be -- I i (~'}
\._/
! 15 understand there is this phenomenon that many people who are 16 suffering from some unfortunate matter, are reluctant to 17 disclose it or have too much pride. And I can understand 18 that. 19 I can understand that. But you can't charge it up f 20 to the Applicant. I mean, the Applicant, it seems to me, is l 21 held to a standard as the witness has just said of doing 22 what most rational decision-makers would say, you know, 23 that's a pretty solid effort to go out and find everybody. l l 24 They use the list of persons, let's say, as we say in 25 Massachusetts, they use the voting list and they 1
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DONOVAN - CROSS 18161 1 supplemented that with the utility bill list and it seems V, g 2 they got most of the people. They put it in the papers.
.3 They put it in their calendars. The calendars are out.
4 That's about as good a job that I think I can do 5 to at least get to everybody. 6 I can't believe that the law of this nation in any 7 area is that you are held to make up for the fact that some 8 people elect for whatever reason not to send the card back. 9 JUDGE SMITH: That's a digression. 10 MR. DIGNAN: No. Because what you can be held 11 for, for example, is if you didn't use a good list. Or if 12 you didn't use that, then somebody could say, okay, well you 13 use this voting list. As a matter of fact there's some I 14 testimony, use this voting list. I don't happen to agree
)
15 with the testimony. But you should have used another list. 16 Fine, we'll use another list. 17 If we want to be conditioned into having the next 18 survey run off a different kind of list, no problem. 19 JUDGE SMITH: But right now we are wrestling with, 20 which is a very, very real and difficult problem is, how 21 much deference, how far do we go in giving FEMA's judgments 22 presumptive validity. 23 MR. DIGNAN: Exactly. l 24 JUDGE SMITH: And as every experienced person 25 knows that you never go into any inquiry whether it be l() l Heritage Reporting (202) 628-4888 Corporation 1 _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ - a
DOHOVAN'- CROSS 18162 l' scientific or social science or whatever it is until sooner 5
\/ 2 or later,. and usually very soon, you come to a dead end when 3 the' answer lies in simple human judgment. That every 4 question cannot be proved. Cannot be analyzed. And you 5- cannot come up with a quantitative answer. Sooner or later-6 depending upon the need for exhaustive research; exhaustive
'7 analysis, sooner or later you come up to a point where 8 somebody has to decide enough is enough. For our purposes 9 enough is enough.
10 Now where that decision is made by FEMA it will be 11 given deference because the people of the United States 12 elected a' president to make such judgments all the time.
.13 And the President of the United States created FEMA.
14 Appointed a director and appointed an associate director 15 confirmed by the Senate to make decisions when enough is 16 enough. And we will give deference when that is the-case. 17 Now having said that, you know, it's all very 18 simple because when does the consideration fall within that 19 area where no further analysis, no further refinement will
.20 materially add to the public wheel. To the public benefit, i
21 .public health. That is if it were left to me alone is how I 22 would decide how we apply the FEMA presumption. 23 Now your good doctor may be just brighter than 24 heck and he may be smarter than Grant Peterson. And he may j 25 be a brilliant person. But when it comes to the area that i. l O
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.1 DONOVAN -CROSS 18163 sy w 1 somebody has to decide when enough is enough it would be 2- Grant'Peterson and not your Dr. Dillman who has the public 3 mandate to take the responsibility for that decision.
4 MR. TRAFICONTE: You shouldn't have let the 5 contention in, Your Honor. .That's what I hear.. 6 JUDGE SMITH: That may'very well be. 7 MR. TRAFICONTE: I hear you ruling as a matter of 8 law. 9 JUDGE SMITH: Well, you put on parity, your 10 witness'with Grant Peterson as far as the responsibility and 11 the prerogative of making determinations when enough is 12 enough. 13 MR. TRAFICONTE: No. Our witness doesn't have -- 14 JUDGE SMITH: You can see that always a judgment 15 must be made by human mind sometime in every endeavor of 16 this nature. 17 MR. TRAFICONTE: Yes. And I think in my view of 18 the law that judgment.has to be made by this Board. 19 JUDGE SMITH: Well, that's where we are now. 20' MR. TRAFICONTE: And I don't have any difficulty 21 with the -- we can call it the "enough is enough" point 2.2 .you've'made. I think it's a good point. It seems to me 23 that's the judgment assessing adequacy that the Attorney 24 General's office has been describing as necessary in this 25 case from day one. 1 () Heritage Reporting (202) 628-4888 Corporation
DONOVAN - CROSS 18164 ,r m 1 We think that is precisely the kind of judgment \- 2 that has to be made on a full record. On the full record. 3 You hear evidence. You hear evidence as to the survey that 4 they used. You hear evidence from FEMA as to why it 5 believes it's an adequate survey, if they made any 6 determination that it's an adequate survey. You hear our 7 witness that says, gee, you know, 550 is probably not even a 8 third of the number of people in light of that survey 9 vehicle. 10 You weigh the evidence and you say -- and 11 obviously we wouJ d propose that you find that the survey 12 vehicle that they used, even though it's in accordance with 13 the FEMA requirement and the guidance memorandum 24, doesn't () v 14 catch enough people. It's not adequate. 15 That's exactly the issue that you admitted into 16 litigation, that's the judgment you're going to have to 17 make. 18 Mr. Dignan wants you to make that right now. 19 Okay. He wants you to make it up front. He wants you to 20 make it in the middle of my cross-examination of the FEMA 21 witness when I'm probing what the basis for the FEMA 22 judgment of enough is enough is. He wants you to stop that 23 essentially and make your judgment that if they say it's 24 enough, you will say its enough and rule as a matter of law 25 that the contention really should not have been admitted. 7% s ( s Heritage Reporting Corporation \- (202) 628-4888
DONOVAN - CROSS 18165-f~ 1 That's a certifiable question. 2 MR. DIGNAN: Let me test two things of that, if I 3 might, Mr. Traficonte. If the Board will permit repartee 4 between the two of us. 5 MR. TRAFICONTE: As long as it doesn't order me to 6 answer. 7 MR. DIGNAN: The first question is this, this is 8 very simple, if I make a commitment on the record now that 9 the Applicant will do its next survey the way Dillman wants 10 it made will you drop the issue? 11 MR. TRAFICONTE: The issue on the table, Your 12 Honor, is -- 13 MR. DIGNAN: No, no. Will you drop that 14 contention? Will you drop that contention and not litigate 15 it? If I give you a commitment that before going above five 16 percent power we will conduct Dillman's type of survey, that 17 the contention goes away? 18 MS. DOUGHTY: Five percent? 19 MR. DIGNAN: Before I go above five percent of 20 power. 21 MS. DOUGHTY: Well, there is still an argument 22 before the Appeal Board about whether there should be any. 23 MR. DIGNAN: That may be. But the survey is not 24 an issue for up to five percent operation. 25 If I give you that commitment on the record right () Heritage Reporting Corporation (202) 628-4888
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f- 1 now, will you drop the contention? Because I'll tell you, 2 Mr. Traficonte, as I hear you I get the feeling honestly and 3 I hope you understand this, you want to litigate. And you 4 want to keep litigating whether or not -- no matter what the 5 end result is. I think I'm seeing that philosophy. 6 Because I will give you that commitment. I've 7 just got it from the client. We will do Dillman's survey 8 before we go above five percent of power if you will drop 9 the contention. 10 And the second thing is, you say you're willing to 11 let the Board make a judgment, are you willing -- 12 MR. TRAFICONTE: I won't drop the contention. 13 I'll certainly hold it open while we get the survey done so ("') 14 you can review the outcome. V 15 MR. DIGNAN: But you see that -- 16 MR. TRAFICONTE: Why would the Board want the 17 contention withdrawn? The Board would want to make the 18 determination, wouldn't it, that the survey is -- ! 19 MR. DIGNAN: No, no, John. Because it's your 20 contention and it's yours to withdraw. If you withdraw the 21 contention, unless the Board wants to go so far as to make a l l 22 sui a sponte inquiry into it, they lose jurisdiction at that 23 point. 24 And what's bothering me about -- because the 25 second thing, you said it's the Board's judgment. Do you ( Heritage Reporting (202) 628-4888 Corporation I 1
k DONOVAN - CROSS 18167 g '1 have any problem with'a judgment by a trier of fact that 2 goes;through and says, I as the trier of fact have no 3 particular expertise in these surveys. I am prepared to say 4 that if.the federal agency charged by the President of the
- 5. United States has reached a considered judgment that this is 6 the best survey, that's good enough for me and I so find --
7 MR. TRAFICONTE: I think that's the certifiable 8 issue. Do I have a problem with.that? Yes. I think that 9 would not be the duty -- let me respond. 10 MR. DIGNAN: I understand. 11 MR. TRAFICONTE: Let me fully respond to your 12 second point. I think the Board has an obligation and.a 13 duty once it has admitted a contention and it has proceeded I 14 to litigation and there's evidence that' has been submitted, 15 I think the Board has a duty to resolve the contention. It 16 has not been withdrawn. 17 If I understand what Mr. Dignan just said and this 18 would be the issue, it seems to me or at least one way to 19 frame the issue to certify Mr. Dignan's notion is -- we 20 could get a little bit more testimony perhaps on the record 21 here from whoever it is that could speak intelligently about 22 the adoption of the guidance memorandum. I don't think it's 23 Mr. Donovan. i 1 24 But in any event, Mr. Dignan's proposal would f 25 be -- Heritage Reporting Corporation (202) 628-4888
1 DONOVAN - CROSS 18168 gg 1 JUDGE SMITH: Wait a minute. Do you want to 2 confer? 3 bE. TRAFICONTE: No. I wasn't done yet. 4 His proposal to the Board appears to be that the Board rule 5 now that an appropriate federal agency duly empowered 6 presumptively engaging in its activities in accordance with 7 law, presidential appointment, guidance memoranda properly 8 signed, sealed.and delivered, that the federal agency has 9 set -- FEMA has set a standard for an adequate survey 10 vehicle that the Applicants have come in with a survey that 11 is materially in accordance with that requirement. And that 1:2 this Board is prepared to rule as a matter of law that 13 Interveners' argument that still is not reasonable ) 14 assurance, that you caught enough of the handicapped 15 population is simply out of court. 16 That seems to be the issue. I think you should 17 not do that. I think it would be wrong as a matter of law 18 to do that. 19 But I do think and I reinforce this, that if this 20 is where we're going to go -- we can save ourselves a lot of 21 time and energy and I could be getting a lot more sleep, if 22 this is where we're all going to go we ought to certify that 23 question. 24 25 Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18169
,f - 1 I don't believe that you're permitted, frankly, to 2 do that. But you could certify that question.
3 MR. DIGNAN: Let's come back to question number 4 one now. I'm ready to do it. I'll put a commitment on the 5 record that the Applicant will do a Dillman survey before 6 going above five percent power, will you drop the 7 contention? 8 MR. TRAFICONTE: We will not withdraw the
') contention, because we don't have the survey on the table.
10 We don't have assurance -- 11 MR. DIGNAN: What you want is a chance -- when the 12 _Dillman type survey is done later you want a chance to come , 13 in before the Hearing Board and litigate whether we did it O 14 right. U 15 MR. TRAFICONTE: We want to determine whether we 16 are now going to -- 17 MR. DIGNAN: This is our problem. They want -- 18 MR. TRAFICONTE: What problem? 19 MR. DIGNAN: They don't want to make the plan 20 better, they want to litigate. 21 MR. TRAFICOT ' t No. We want to make the plan 22 better through litigt. tion. 23 MR. DIGF13: Because as long as we're 24 philosophizing. 25 MR. TRAFICONTE: Who is philosophizing? Heritage Reporting Corporation (202) 628-4888
l DONOVAN - CROSS 18170 r- 1 MR. DIGNAN: One of the things that bothers me , ( 2 most about ALAB 905 is I put myself in the position of the 3 Shoreham lawyer who I happen to know pretty well and I say 4 to myself, my Ge J, how did we get here. I 5 Here I am, I go out to the federal agency that the 6 president tells me is the guys who run the show and I say, 7 hey, what do you want us to plan for. And that agency says, 8 20 percent. I go out and my client works their tails off 9 plans for 20 percent, gets it done. And another federal 10 agency steps up and says, hey, we had a shot at that and we 11 don't agree with our brothers over there. We, the federal 12 government sitting is the NRC says, you're wrong you don't 13 get your license. 14 Now, you know, that's simple injustice, Your 15 Honor. A private agency comes -- a private citizen which is 16 what a corporation is, we always forget it, comes before a i 17 federal agency - goes to the federal agency the president ) 18 told them to go to. 19 MR. TRAFICONTE: I told you, you were unhappy 20 about 905. Didn't I say that? 21 MR. DIGNAN: I'm never happy or unhappy about i 22 decisions. They' re either right or they' re wrong. 23 What I'm running into over here, Mr. Traficonte is 24 executing his office's policy beautifully. If I were 25 Shannon I would give him a raise. But the thing of it is, f e Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18171 s 1 is the basic policy of the Attorney General is what you're 2 seeing here, is to keep the litigation going. And we've got l 1 3 to cut through that somehow. 4 I think one way to possibly cut through it is to 5 get up to the Commission the fundamental question. 6 JUDGE SMITH: That may be. 7 MR. DIGNAN: Of whether or not this Licensing 8 Board or any other Licensing Board of this agency is charged 9 with the responsibility of essentially relitigating the 10 guidance of FEMA. Not the plan or whether the plan adhered 11 to the guidance. But of whether that federal agency's basic 12 way of doing business is correct. 13 Now if the Commission comes down and says to all (" 14 of us, that's absolutely correct, Mr. Traficonte is right, L}/ we are supplying three-Judge forums to litigate however many 15 16 times people want to, and there probably aren't very many 17 opportunities available given the state of the nuclear 18 industry right now, whether or not FEMA knows how to do its 19 job. 20 And if that's what the NRC intended so be it. I 21 guess it assures me of employment for a long time. And 22 that's a goal to be pursued. And I say that with the vice 23 president of the client back here, and my sughters thank 24 you, my wife thanks you. 25 But is it a rational way to run a government? This () Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18172 f-sg 1 is the quandary my client is in. And if the Board would be ( 8
\# 2 willing -- and I don't think you ought to ask the parties to 3 sit down and draw the question for you. I think the Board 4 fully understands what the basic problem is. We'll never ;
5 agree on it. Because as I say, I'm running into a 6 philosophy on the other side and I don't get upset with him 7 for doing it. If I had his Commission I would be doing the 8 same thing he's doing. He wants to keep litigating. I 9 don't. I suggest the Board draw an appropriate question. 10 Do everything they can to get it up to the agency. 11 JUDGE SMITH: We seem to be in agreement on that. 12 MR. DIGNAN: Yes. And find out from the Nuclear 13 Regulatory Commission, hopefully. 14 JUDGE SMITH: I don't know how to get it up. 15 MR. DIGNAN: I know. It has got to go through the 16 Appeal Board by the decisions of the books unless the 17 Commission reaches down by itself to toxe it from the Appeal 18 Board. 19 But get it on the road hopefully to the Commission 20 to give us the guidance of whether we're going to sit here 21 for a few months and litigate whether FEMA knows how to do 22 it's job. Because if we're not I think Mr. Traficonte and I 23 are both in agreement, we're all going to have a much more 24 pleasant summer on the Cape or at Disney World or somewhere 25 else. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18173 g 1 But if we have to litigate it we' re going to be i l 2 here for a while. 3 MS. DOUGHTY: Your Honor, just another issue that l l 4 Mr. Dignan hasn't directly addressed as to whether the 5 guidance has been appropriately applied. 6 Mr. Dignan earlier made an example of a map. FEMA 7 requires a topographical map or rather the federal 8 government requires a topographical map. FEMA looks to see 9 if it's there and checks it out. 10 But there has got to be a deeper level of 11 analysis. Somebody has got to be sure they haven't got 12 Mount St. Helen in the middle of the beach areaf an 13 unpopulated area. i /N 14 I just think there has got to be another level of
%Y examination to see whether the federal agency is properly 15 16 applying its own guidance.
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DONOVAN - CROSS 18174 1 JUDGE SMITH: I think that the standard of the 2 Board that I discussed would be adequate, would comport with 3 Commission of law. And that is, when in any inquiry we're 4 making we come to the point which inevitably comes up where 5 somebody has to make a judgment and Licensing Boards have 6 made judgments in licensing cases for years, but where a 7 judgment has to be made, FEMA has made it within the purview 8 of their regulations and their franchise and that there is a 9 rationale for the judgment. And the rationale is rational, 10 is a valid one. And it does end up as a matter of policy 11 type judgment. 12 I have no difficulty running this hearing based 13 upon that and identifying what those are and accepting 14 FEMA's final call and initial call on how these things 15 unfold. 16 but I can't reconcile that with ALAB 905. We did 17 not have to wrestle with 905 in our case because we saw a 18 different situation. 19 So I would think if you want a certified question l 20 it might be helpful. If it weren't for 905 I wouldn't even 21 entertain it. Because I think that we car handle the law, l 1 22 We can handle the deference to the agencies. 23 These considerations were not invented for NRC 24 emergency planning considerations. These are traditional 25 old standards where you don't relitigate everything every O Heritage Reporting Corporation (202) 628-4888 1 1
DONOVAN - CROSS 18175 1 time something comes up'. That you do give deference and O 2 assumption of regulatory to the actions of. government 3' agencies. 4 MR. TRAFICONTE: Your Honor. 5 JUDGE SMITH: This is just another manifestation i 6 of that. But I can't reconcile that with ALAB.905, so I-7 don't know what to do. 8 MR. DIGNAN: As I say, the only reconciliation I 9 can suggest to you with 905 -- and I thinh'a certified 10 question should be done because if I'm wrong in this -- I 11 hate to say this because I want to go home, read it again, 12 and frankly want to talk to Don Irwin about what went on 13 because I'm not that converse with it. 14 But.I don't recall that_the Appeal Board ever was 15 hit with and had to address the whole question of just the 16 presumption of regulatory and so forth attaching and that 17 with.50.47 piled on top of it, the Commission statement that
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18 it shall be, was ever addressed or thought about in that 19 decision. 20 JUDGE SMITH: Mr. Dignan, how could they not have 21 thought about it? 22 MR. DIGNAN: Well, Your Honor. 23 JUDGE SMITH: I mean, it's just incredible that 24 they didn't think about the FEMA presumption. It's such a 25 matter -- Heritage Reporting Corporation O. (202) 628-4888
DONOVAN - CROSS 18176 1 MR. DIGNAN: Is your recollection the same as
.O,ew 2 mine, though, that there 3 s nothing in the decision 3 indicating that they did?
4 JUDGE SMITH: No, I couldn't see that in the 5 decision. 6 MR. DIGNAN: Neither could I. 7 JUDGE SMITH: I do not see that it was considered. 8 I cannot infer it. I just reject the idea that they didn't 9 think about it. 10 MR. DIGNAN: Well, I think this -- and understand, 11 I'm not urging you to adopt that argument and with it, don't 12 certify a question and march ahead with your view. I think 13 a question can be certified legitimately putting it to them 14 on the basis of that and maybe we get the same answer, I l 15 don't know. 16 The reason I think they may not have thought of 17 it, and that's why I want to put an inquiry, I'm not sure it 18 was ever argued to them. I'm not sure. Because of the 19 context. No. And I don't really want -- and I really mean 20 this because I know and like these lawyers and they're good 21 lawyers. Because in the context in which it came up, there 22 was no formal FEMA finding around yet. i 23 My understanding, the latest information I had was 24 at the time that issue was in the RAC or out of the RAC or 25 something. (~% Heritage Reporting Corporation I ( ) (202) 628-4888 L _ - - _ - _ . _ _ _ _ _ _ _ _
DONOVAN - CROSS 18177 gS 1 JUDGE SMITH: Just looking at FEMA as another 2 expert witness? 3 MR. DIGNAN: Yes. FEMA was in the same status 4 when the thing was being argued before the Licensing Board 5 as it was up in New Hampshire. That is to say it had 6 certain views but there had been no formal finding, and 7 hence, without the formal finding no presumption had 8 attached. 9 And that's the only way I can account for it. And 10 that's why I say among other things, I want to talk to 11 LILCO's lawyers to find out what was going on because I'm 12 not sure it was ever argued to the Appeal Board in that 13 setting. 14 JUDGE SMITH: Do you want to defer it for now? Is (} v 15 there any possibility that - go ahead and make your 16 inquiry. I think we' re beginning to repeat now. 17 MR. FLYNN: Your Honor, I had a point or two, if 18 you will give me a few moments. 19 I would like to suggest a way that ALAB 905 can be 20 reconciled to the standards which you have just articulated. 21 I think Mr. Dignan is correct that the argument about the 22 rebuttable presumption wasn't argued. And he is certainly 23 correct that the lack of a FEMA finding was very analogous 24 to the situation that we had in the New Hampshire hearings. 25 But the point that I wanted to make about the l Heritage Reporting Corporation (202) 628-4888 1
DONOVAN - CROSS 18178 i i particular facts underlying ALAB 905 that distinguish it 2 from what you've articulated. One of the things that you !
~3 said was that the rationale may be probed and the 11 presumption is contingent.upon the rationale being 5 satisfied, being valid.
6 What the Board found -- what the Appeal Board 7 found in ALAB 905 was that a rational basis had not been 8 offered in the FEMA testimony. They were more satisfied 9 with the cnalysis offered by the NRC Staff. But it was a 10 very different analysis, it was a site-specific analysis 11 rather than a generic. 4 12 If you will recall from the Krimm memorandum which 13 was part of the evidence in the New Hampshire case the basis 14 offered was that in nonradiological emergencies, 15 specifically natural disasters, certain numbers of people 16 could be expected to seek sheltering. And from that it was 17 inferred that in a radiological emergency similar numbers of
'18 people would seek monitoring.
19 And the Appeal Board found that that was not an 20 appropriate analogy. So implicit if not explicit in that 21 decision was a finding that a rational basis had not been 22 articulated in the FEMA testimony. 23 In that sense, ALAB 905 is consistent with the 24 standard ' at you k ave suggested right now. 25 JUDGE SMITH: So what do we do? O Heritage Reporting Corporation (202) 628-4888
F-t DONOVAN - CROSS 18179 1 Is there any chance that you can agree upon a 7-s
"# 2 certified question?
3 First you want to decide whether you want to 4 pursue the request to certify? 5 MR. DIGNAN: I want to pursue the request to
'6 certify.
7 JUDGE SMITH: Can you see if-you can agree upon 8 the question to be certified? 9 MR. TRAFICONTE: I propose that Mr. Dignan draft 10 up a certifiable question. I would review it and as quickly 11 as I can get comments back. And I think we should try to 12 work out some language that we could certify a question. 13 I know what I am intending to do through cross-14 examination, that's for sure. And I know what M r. Dignan is (V) 15 intending to do through his request for certification. So I 16 think we can probably work out some language. 17 JUDGE SMITH: I guess in this instance the Board 18 -- we have been very much a part of the discussion. But we 19 would like for you to actually go ahead and do our work for 20' us and that is give us something to sign here if possible 21 and send it on. 22 I just don't want your arguments to go back to the 23 office and fashion a memorandum certifying the question to 24 the Appeal Board. I would like to be able to sign your work 25 on this and send it on. Heritage Reporting Corporation (202) 628-4888 i
1 DONOVAN - CROSS- 18180 l l
;- 1 You are the people who are going to live with it. !
' \sj)f= And I You are the people who need the matter resolved.
;2 3- think you should be able to agree'upon the question to be 4 certified. Otherwise-everything stops. Back to the office 1 5 we go and sit down and start plodding away at it. -Because_
6 there's only one Board and we're not two places at the same 7 time. 8 MR. TRAFICONTE: Can the Board throw out -- well, 9 perhaps.we want to take a break. Can the Board throw out as 10 a sample a summary statement of what the Board now 11 understands the last hour or so has led us to? 12 We want to do this at a broader net, don't we, 1 13 then just a. survey vehicle I assume. There's more than one I 14 issue on the table that this touches on. 15 My view of the question is that FEMA has a 16 standard, performance standard or it has some standard for 17 an element of the plan. In those circumstances when FEMA l l 18 has reviewed the plan against.the standard and found it 19 adequate this Board is going to entertain the proposition 20 that as a matter of law that plan is ad. equate. And
.21 Interveners who would seek to challenge that through an 22 evidentiary case or through cross-e: amination of the basis 23 for the FEMA determination of adequacy are simply going to 24 be prohibited from doing that.
25 I guess we could label it "enough is enough." I Heritage Reporting Corporation
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DONOVAN - CROSS 18181 fs 1 understand that to be the general gist of what we're talking
.(
)
2 about. I'm sure I don't have to repeat for the record that , 3 we obviously don't think that's right. We don't think it's - 4 right as a matter of law. But I can't argue that it would 5 save -- save time, but it would certainly shorten the 6 proceeding. 7 Well, I don't think it would shorten the 8 proceeding because I think what will happen is you will 9 certify and a couple days later we're going to get it 10 rolling back that says, sorry, can't do that. You're going 11 to have to decide this and you're going to have to look at 12 the evidence and you're going to have to permit the cross-13 examination and you're going to have to examine the bases 14 and then you're going to have to judge it. I think that's 15 what the Appeal Board is going to say. So we will have a 16 three or four day break which is all right with me. 17 So long term, I don't think we're going to be 18 saving time in the ultimate sense. There is the possibility 19 that we could, however. Mr. Dignan might prevail, 20 JUDGE SMITH: We're going to take our afternoon 21 break. 22 (Whereupon, a recess was taken.) 23 24 l 25 l 0 3 Heritage Reporting Corporation (202) 628-4888 1 l ._ - --. - - - _ _ _ _ _ - - _ - _ _ _ _ _
DONOVAN - CROSS 18182 1 JUDGE SMITH: Back on the record. f f~ 2 MR.'FLYNN: Your Honor, I need to clarify 3 something and this will just take a few seconds. 4 There is another distinction to be made between 5 ALAB 905 and the discussion we were having about the j i 6 guidance documents before us. And that is that the Krimm 7 memorandum does not rise to the level of guidance memoranda. 8 It was not signed by a Presidential appointee. Mr. Krimm is 1 9 an assistant associate director. He is one more level below 10 the Presidential appointee. He's an SES civil servant. And 11 for that reason as well, the decision may not apply to the , 12 guidance that we were talking about. 13 JUDGE SMITH: That's a good point. 14 In the meantime, are you going to inquire further, 15 Mr. Dignan? Do you want to -- 16 MR. DIGNAN: Yes. I can tell you what's happened 17 so far. 18 We inquired of the lawyers who handled the LILCO 19 matter. I am advised that I was correct in my 20 representation that they did not have a formal FEMA findin,g i 21 at the time they were dealing with all of this. They also 22 concur in my reading, and of course that's irrelevant in a 23 way because that's up to the Board and everybody, that 905 24 didn't address this question of what about the rebuttable I 25 presumption in this whole setting. O Heritage Reporting (202) 628-4888 Corporation L__________________
DONOVAN - CROSS 18183 g 1 What they have not been able to confirm, but will N 2. hopefully be able to in 20 minutes, is saying'that it was 3 never argued before the Appeal Board. They did want to go 4 back and read their brief and be sure that it isn't thrown 5 in somewhere. They are clear that it was no major argument 6 made to that effect. But what they want to do.is reread 7 their brief before they tell me it wasn't argued at all. 8 And Ms. Selleck is to call them back in what is 9 now about 10 minutes or 15 minutes, and I will have the 10 answer for that one too. 11 JUDGE SMITH: All right. 12 MR. TRAFICONTE: Your Honor, I have one final 13 point to make which I, in my mind, would put this to rest g 14 and we wouldn't bother to even proceed with an effort to i 15 getting some language to certify. i 16 I believe that the course that you are being 17 advised to take is essentially a rulemaking. I think you 18 are being asked to make or amend the rules and the 19 regulations in such a fashion that during a licensing when 20 emergency plans are challenged the NRC is prepared to accept 21 and not entertain a challenge to an adequacy determination l 22 made by FEMA if the adequacy determination was made pursuant 23 to a regulation of a certain nature with the requisite 24 earmarks and indicia of officiality, et cetera, et cetera. 25 The point is that you are being asked to rule as a ( Heritage Reporting Corporation (202) 628-4888 l
DONOVAN - CROSS 18184 7g 1 matter of law that once FEMA judgments have been made based
' 2 on a' guidance memoranda or FEMA regulation that has those 3 indicia of officiality, that's it. And I believe that would 4 be an amendment to the NRC regulations. The NRC regulations 5 don't.say that.
6 They say that the FEMA finding is given rebuttable I 7 presumption in contested licensing proceedings; that FEMA 8 can come in, or that the Applicant could make use of a FEMA 9 finding on a contested issue, but that Interveners can 10 challenge the FEMA finding. 11 JUDGE SMITH: Right. 12 MR. TRAFICONTE: I don't see how -- 13 JUDGE SMITH: But, see, there is a difference, and 14 we keep slipping off this difference. And that is, you can 15 challenge it, and you can come back and show that they are 16 wrong. But if you show that you disagree with the depth of 17 the analysis, or you disagree with their judgment and you 18 would rather have your witness's judgment being used I 19 instead, that's where you lose. 20 MR. TRAFICONTE: Well, you say lose. Doesn't it 21 go to weight? 22 If we can show, for example, that the survey 23 vehicle that started this ball rolling, that the survey 24 vehicle, as Mr. Donovan I think has testified, resulted in 25 this case with the identification of 550 handicapped I Heritage Reporting Corporation !
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DONOVAN - CROSS 18185 1 individuals. I 2 JUDGE SMITH: No, left out an equal number. 3 MR. TRAFICONTE: It left out an equal number. 4 JUDGE SMITH: I have no difficulty with that. 5 MR. TRAFICONTE: Or even more problematic perhaps, 6 the FEMA witness is not prepared to say with any confidence 7 whether or not it left -- he's not sure whether it left out 8 anybody. He hasn't formed the judgment whether it left out i 9 anybody, because it is the kind of survey that their regs I 10 require and QED, it's as far as his inquiry went. 11 In that evidentiary setting, our view is it goes 12 to weight. If we have an expert who will come in, as we 13 have, whose filed testimony looked -- he's examined the 14 survey, the same survey that Mr. Donovan has examined. He's 15 looked at it as a survey expert and determined that it 16 simply would not have a high response rate, and it therefore 17 weakens the assurance that the 550 is near to the right 18 number. 19 If that's in evidence, I think you are being 20 asked, and correct me if I'm wrong, Mr. Dignan, but I think 21 you are being asked to rule that basically that evidence is 22 out of balance. It is an adequate survey. There has been 23 adequate identification of the handicapped, and that the 24 plan is adequate in those areas that otherwise we are 25 attempting to contest with those contentions. l f') Heritage Reporting Corporation (202) 628-4888 1 1
l l DONOVAN - CROSS 18186 s 1 MR. DIGNAN: I think that the Judge put what I'm
~ 2 really saying, Mr. Traficonte, and it's not quite that. The 3 problem is this. Let's forget.Mr. Donovan for the time 4 being. Suppose I put my survey guide on. And you are going 5 to ask him, well, are you sure you captured everybody? And 6 he, as any honest survey guide would be, say, no, I'm not 7 sure I captured everybody. That's beyond the realm of' 8 mankind. This is my view of a reasonable good effort. I'm 9 comfortable with it, but so forth and so on.
10 You put your guy on and you make the point that 11 he's going to say, well, he doesn't think we've got 12 everybody.- But you know what?- If I ask him, can you 13 testify under oath that we didn't get everybody, he's going ! 14 to have to say, no, I can't say that. For all I know, you 15 know, the survey did get everybody. I don't think it did 16 because in my judgment I would have done all these other-17 things. But for all I know, you got everybody. 18 And what I hear His Honor saying is, if that's all 19 you can prove, that is to say, all you can get to i any guy 20 is saying, gee, I can't testify that we did get everybody 21 and your guy can't testify we didn't, he is saying at that 22 point we're at the judgment, we're at the judgment 23 threshold. And at that point the Board, if that's all the 24 testimony that ic going to be given, then can believe, they 25 can believe both sides completely. O Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18187 f- 1 They can say, we believe your witness that this (' 2 might have been the better way to do it. We believe Mr. 3 Dignan's witness that in good faith he thinks that the best 4 way to do it, and now we've got to decide. 5 And what we are going to do at that point is look 6 over and here is this agency appointed by the President of 7 the United States to decide these things for the United 8 States of America, and in their judgment this survey is good 9 enough. End of issue. 10 JUDGE SMITH: That states it very well. 11 MR. TRAFICONTE: Well, he may state it very well, 12 Your Honor, but the problem is the witness is -- 13 JUDGE SMITH: I might even go a little bit farther 14 than Mr. Dignan. I might even say, you know, by golly, if I
)
15 were Peterson, I'd do it the way your witness would do it, 16 you know. But he's the man in charge and he didn't do it 17 that way, and it's going to be all right because your way 18 was not obviously superior, if I can borrow a phrase from 19 this very proceeding, and his way wasn't shown to be-20 inadequate. 21 We are talking about in the social sciences here 22 what in other cases we would have called engineering l 23 judgments. But in the social sciences, you mix in the 24 special prerogative of making social judgments by the people 25 elected to make those judgments and gives them special O Heritage Reporting Corporation
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1 DONOVAN - CROSS 18188 l
, 1 weight. But this is the governmental social side of l
5/ 2 engineering judgment.
~
Sooner or later there always comes a 3- time'when the decision is made, based upon no longer any 4 calculations, no longer sny reading of material strengths 5 and tables and things like that that you bring to play from 6 the well springs of your mind, all of your experience, all 7 of your education and everything. And you say, this is good 8 enough, and it will do the job that I think should be done. 9 I'm paid to make the decision. I answer to the President J 10 and the President answers to the people, and that's the way 11 it's going to be. 12 That is where I think FEMA's role is and that's 13 what we are going to do with it. It's the political and 14 sociological equivalent of engineering judgment. 15 MR. TRAFICONTE: Two points, Your Honor. 16 First of all, what happens to our hearing right? 17 And the second point is we have the witness i 18 already on record indicating that he and FEMA have made no 19 determination whether the 550 is off by one, ten or a 20 hundred. 21 JUDGE SMITH: Right. 22 MR. TRAFICONTE: I mean that -- 23 JUDGE SMITH: Go ahead. You can probe that. 24 MR. TRAFICONTE: Well, this is how we got started, 25 because the whole -- I don't know how many number of hours 4 Heritage Reporting Corporation
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DONOVAN - CROSS 18189 s 1 ago this was a cross-examination, and it was interrupted by x- 2 objection, both by Mr. Flynn and then by Mr. Dignan as to 3 the scope of the cross. I'm treading on areas -- I mean, 4 have you just overruled the objections to the scope of my 5 cross, and I'll go back on track? 6 JUDGE SMITH: No, I don't remember anymore. 7 MR. DIGNAN: But, Mr. Traficonte -- 8 MR. TRAFICONTE: That's how we got started. 9 MR. DIGNAN: But, Mr. Traficonte, the problem I 10 have with that argument, and the Judge said probe that. I 11 would like you to reconsider that, Your Honor. 12 The fact of the matter is no witness can sit on 13 that stand, no witness, no one's witness, and say, yes, I'm 14 absolutely clear that number is on or off the marker. 15 JUDGE SMITH: You are getting down there too fast. 16 We know that. 17 MR. DIGNAN: All right. 18 JUDGE SMITH: But-you have leaped ahead too far. 19 Let him get there in his cross-examination. 20 MR. DIGNAN: No, because here is what I'm getting 21 at. 22 JUDGE EMITH: Except we already went there with my 23 examination. 24 MR. DIGNAN: I think we did, too. But more 25 importantly, this is where I get back to this precision () Heritage Reporting Corporation (202) 628-4888 l l _.._____._U
DONOVAN - CROSS 18190 i
,-- 1 problem. The fact is no witness can do it.
b' 2 For example, if we did a Dillman study, that 3 Dillman would go down there and said, this is the way to do j 4 it. By gosh, I love it. The fact of the matter is if at 5 that point Mr. Traficonte was unhappy because Dillman was on 6 my team, he could look him straight in the eye and say, Dr. 7 Dillman, can you testify under oath that you have gotten all 8 but maybe two people? He's got to say, no, I can't. 9 Through pure dumb luck they could have missed some people. 10 Through pure dumb luck the worst done survey in the world 11 could have got everybody. 12 You really come to the essence of the problem 13 here, because these are -- everyone of these issues that.
/"'T 14 remain to be litigated in this case are nothing but judgment O 15 calls.
16 JUDGE SMITH: Well, that may be the case, it may 17 be, but he's going to be able to find out if it is a 18 judgment call and was the judgment call called at the 19 judgment call level. 20 MR. DIGNAN: Well, if that's all the -- 21 JUDGE SMITH: It may be a long litigation. I 22 don't know how to avoid it. 23 MR. DIGNAN: Well, no. But I'm saying if that's 24 all we have to establish, I imagine, I may be wrong, Mr. 25 Flynn and Mr. Donovan would gladly stipulate with Mr. f ' Heritage Reporting Corporation (202) 628-4888 l 4 _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . . A
DONOVAN - CROSS 18191
,x , 1 Traficonte they are all judgment calls.
! \
'-' 2 JUDGE SMITH: If that's the case. I don't know.
3 Maybe we will find that to be the case. I could see very 4 well it was not a judgment call after we got some of the 5 details of it. It was not a judgment call. There was a 6 great deal of rational consideration involved. 7 MR. DIGNAN: So what Your Honor is saying it's not 8 at issue of whether it's a judgment call. The issue is 9 whether or not there was a rationale such that when the 10 judgment call was finally made one could be confident that 11 the judgment was a considered one. 12 JUDGE SMITH: That's right. And then, as I say, 13 you always move to the time where further analysis is no 14 availing, creates no more benefit, somebody has to make the (~} V 15 call, and that's the judgment call. 16 MR. TRAFICONTE: If the witness indicates in 17 response to questions that he's unable to make a 18 determination, or has not made the determination whether 550 19 handicapped persons is half, 75 percent of 25 percent of the 20 total relevant population, I don't believe he's made the 21 judgment call. 22 JUDGE SMITH: Well, let's find out. There is one 23 thing you have overlooked the Commission has said to 24 licensing board in emergency planning. That they have 25 considered more detailed rulemaking, and they have elected /~N ( j Heritage Reporting Corporation N/ (202) 628-4888
DONOVAN - CROSS 18192 1 not to. They have decided to give licensing boards a 7-s
'- 2 certain amount of discretion in these hearings, because they 3 have elected to set the Commission law on a case-by-case 4 adjudication basis.
5 MR. DIGNAN: I agree. 6 JUDGE SMITH: And we can't, at least I can't, 7 answer his question as to how many percent of missed people 8 would constitute a faulty call. 9 MR. DIGNAN: No. but you see the problem is, this 10 is again, that's the question he wants to ask them. I don't 11 know what the witness will answer either. But I've got a 12 pretty good idea what he had better answer. And that is, he 13 doesn't know. And the reason he doesn't know is because 14 he's told us what he did. What he did is he took the plan, 15 he took these survey documents. He looked at his guidance, 16 the guidance of FEMA, as I understand it. And said, these 17 survey documents comply with this guidance. And he's told 18 you, Your Honors, I know that the guidance was the product 19 of a lot of thinking. This is how we came up. This was the ( l 20 kind of survey to do. 21 The only judgment he is applying, if you will, in 22 this setting, in terms of why he's here, is he's saying this 23 set of documents meets this guidance. 24 I don't see how he or anybody else can sit there 25 with assurance and say, this survey, the one at Seabrook did i
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DONOVAN - CROSS 18193 l l f3 1 or did not miss so many people, because we don't know. I l ( )
\~# 2 I still say that the question of whether or not he 3 can put an order of magnitude on this thing is irrelevant.
4 JUDGE SMITH: I just don't follow the argument, 5 Mr. Dignan. I've tried. I don't follow the argument. You 6 can't have it both ways. You recognize that you are 7 counting on the FEMA rebuttable presumption, and here is a 8 witness that you better hope can support that. Otherwise, 9 you have got a lot of more to do than you thought you had. 10 And say he can't be probed. 11 And we will have to decide on a case-by-case 12 basis. 13 MR. DIGNAN: Where it cuts off. 14 JUDGE SMITH: Whore it cuts off. ('~} LJ' 15 MR. DIGNAN: All right. I agree. 16 JUDGE SMITH: If we come up with an algorithm or a 17 formula for something to tell you in advance where we are 18 going to cut it off, that would be great. But if I could do 19 that, I wouldn't be fooling around up here. 20 (Laughter) 21 MR. TRAFICONTE: Your Honor, on the assumption 22 that this cross-examination is now going to ask quite a few l 1 23 days and be interrupted more than once. 24 JUDGE SMITH: We were expecting to finish tonight. 25 (Laughter) Heritage Reporting Corporation (' . (202) 628-4888
DONOVAN - CROSS 18194 f-s 1 JUDGE COLE: By four o' clock.
.k'- 2 MR. TRAFICONTE: By four o' clock. I'm running 3 late. I'm still on my first Roman numeral.
4 I'm going to take something out of sequence 1 5 actually. In part, because I think the discussion to date 6 is relevant, and also because I want it in the record sooner 7 rather than later in the event that intervening events occur 8 and the record is at least more abruptly than I anticipated 9 brought to a close. 10 JUDGE SMITH: As I understand it, you are still on 11 Roman Numeral 1.A. 12 MR. TRAFICONTE: Isn't that remarkable. 13 (Laughter) 14 JUDGE SMITH: And now you are going to go out of 15 sequence. 16 (Laughter) 17 18 19 20 21 22 l 23 24 25 Heritage Reporting Corporation O'- (202) 628-4888
DONOVAN - CROSS 18195 f <- 1 MR. TRAFICONTE: Your Honor, out of sequence, I 2 just want to have a stipulation that counsel for FEMA and I j l 3 had worked out or entered into over the course of discovery. I 4 I would like to have that at this point admitted and entered 5 into the record. 6 MR. DIGNAN: Where is the stipulation and what is 7 it? 8 MR. TRAFICONTE: We'll get to it. Just give me a 9 chance. 10 And I've excerpted from the deposition of Richard 11 Donovan the January 11, 1989 transcript at pages 97 through 12 99, I believe -- through 100 perhaps. I have handed copies' 13 of that deposition transcript to the parties, and I would 14 just like at this point to read into the record the 15 stipulation that FEMA counsel entered into on behalf of 16 FEMA. 17 It begins on page 97. 18 MR. FLYNN: Excuse me. You are asking me now to 19 adopt this? 20 MR. TRAFICONTE: No. It's a stipulation you have 21 already adopted. 22 MR. DIGNAN: Have I got the right pages? I don't 23 see the word " stipulation". 24 MR. TRAFICONTE: Well, can I proceed? Can I 25 proceed and all questions will be answered, as they cay? O Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18196
,e-3 1 At the bottom of 97, there is a question, "Mr.
i\~) 2 Donovan, we just had a fairly lengthy off the record 3 discussion and I want to put one question to you and it 4 might still need to be reformed and revised a little bit 5 but, in e'fect, to try to summarize the discussion we had, 6 in reviewing a utility plan and in reviewing the 7 compensatory measures taken by the utility to compensate for 8 the nonparticipating governments, are you making a judgment 9 on the effectiveness of the compensatory measures in the 10 event of an actual emergency?"
- 11 Answer
- " Making a judgment on the compensatory 12 measures against the criteria and the criteria is designed 13 to address a spectrum of emergencies."
l (~h 14 "Mr. Flynn: Let me suggest something here. In N!- 15 one sense, you are asking a legal question and I'm not 16 bringing that up as an objection but by way of an offer to 17 stipulate. 18 ." Mr . Traficonte: That's what I would love to do. 19 We've been around this busy so many times. I think it's my 20 own lack of art to be able to nail this down. 21 "Mr. Flynn: the other point I would like to make l is the sense of your question is whether it is part of l 22 23 FEMA's evaluation to judge whether some threshold of safety 24 is accomplished by the plans. That's not the best way to 25 phrase it, perhaps, but you are asking the question from the h Heritage Reporting Corporation N- (202) 628-4888 1 - - - _ - - - _ _ -
n-_____ . _ . _. DONOVAN - CROSS 18197 1 point of view of whether the plans are evaluated to judge if f-- i - 2 there is some quantitative measure, perhaps, of the level of 3 safety achieved by the plans or if not a quantitative 4 measure, then some subjective estimate of the efficacy of 5 the plan in achieving a level of safety and my offer to 6 stipulate is that FEMA does not consider that to be part of 7 its review progress or part of the judgment expressed as a 8 result of the review process. 9 "Mr. Traficonte: Would you enter into a 10 stipulation in that regard both to FEMA's review process on 11 the plan and the exercise in the Seabrook instance? 12 "Mr. Flynn: Yes. 13 "Mr. Traficonte: Can we enter into that
/ 14 stipulation, as far as you are concerned, on this record?
O) 15 "Mr. Flynn: I'm certainly happy to do that. The 16 only condition that I would attach is that after the FEMA 17 officials in Washington have reviewed the record, if they 18 take exception, I would communicate that to you and the 19 other parties in this case." 20 I would offer the portions I've read of this 21 record as a stipulation by FEMA, through counsel, of the 22 nature and scope of the review that they have conducted of 23 both the plan and exercise. 24 MR. FLYNN: Well, I have to respond to that. 25 The offer was conditional, a'nd as it happens I did t Heritage Reporting Corporation i
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l DONOVAN - CROSS 18198
,~s 1 not get back to Mr. Traficonte about it. But I did have w- =2 discussions with officials at FEMA, and there are some 3 further points that have to be made.
4 If the Board is going to accept this as an 5 admission on the part of FEMA, then I have to offer those 6 additional points. 7 MR. TRAFICONTE: Your Honor, I'm not sure that -- 8 I think I have to object to that. 9 Mr. Flynn correctly stated that he did not get 10 back to me. 11 MR. FLYNN: I object to this as hearsay. 12 MR. TRAFICONTE: You object to a stipulation as 13 hearsay? 14 MR. FLYNN: Yes. 15 MR. DIGNAN: Well, I don't understand that, but I 16 do -- 17 MR. TRAFICONTE: Mr. Flynn, this is recorded by a 18 court stenographer, and it's a stipulation knoringly and 19 intentionally entered into by counsel. 20 MR. FLYNN: I'm not a witness. MR. TRAFICONTE: 21 Mr. Flynn, counsel can bind their l 22 parties and their clients. 23 MR. FLYNN: It's conditional. 24 MR. TRAFICONTE: Yes, and I was just about to turn 25 to the condition. Heritage Reporting Corporation O- (202) 628-4888
DONOVAN - CROSS 18199 L fw 1 The condition was, "The only condition I would
2 attach is that after the FEMA officials in Washington have 3 reviewed the record, if they take exception, I would 4 communicate that to you and the other parties in this case."
5 And as Mr. Flynn just indicated, he made no such 6 communications. 7 MR. DIGNAN: Well, he's making one now. 8 MR. FLYNN: I'm doing it now. 9 MR. DIGNAN: And he didn't put any time limit on 10 it if you want to get technical. 11 MR. TRAFICONTE: Your Honor. 12 MR. DIGNAN: But more importantly, what's the 13 purpose of this offer? 14 FEMA is not a party. I'm not bound by this 15 stipulation so where do we go from there, whatever it is? 16 And I assume it's going to be changed. 17 We all know about people who sign stipulations, 18 Mr. Traficonte, and then walk away from them, don't we? 19 Don't we? 20 MR. TRAFICONTE: Yes, we do, Your Honor, i 21- MR. DIGNAN: Yes, we do. 22 MR. TRAFICONTE: When both parties -- 23 MR. DIGNAN: I am ready to let that stipulation be 24 entered now -- 25 MR. TRAFICONTE: As I have been for a period of j I Heritage Reporting Corporation
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DONOVAN - CROSS 18200' 1 one. month, Mr. Dignan. On every occasion when this has come 2 up, I have-told you that we would abide by the language that 3 we signed. 4 MR. DIGNAN: So will I. 5 Will the Board consider our stipulation? 6 MR. TRAFICONTE: We had this discussion about five 7 different times, Your-Honor, that ETE stipulation, and the 8 Board is very familiar with how that came undone. 9 We had a fundamental missing of the minds on the 10 ETE stipulation. I resent the -- I wouldn't even' call it 11 innuendo, because it's not even nuanced enough to innuendo. 12 MR. DIGNAN: No, it's a correct statement. 13 MR. TRAFICONTE: Yes, it is. 14 MR. DIGNAN: You'can take it that way. 15 MR. TRAFICONTE: Okay, then we will abide by the L 16 language. Just as I told you on the phone, by the way, two 17 or three days after we first -- 18 ' MR . DIGNAN: Then'let the Board' confirm the l 19 stipulation. 20 MR. TRAFICONTE: As the Board could then have a 21 satellite litigation as to what the stipulation is intended 22 to mean, yes. That was what we said in -- 23 JUDGE SMITH: I explained to you before that we do 24 not have the jurisdiction to entertain that stipulation 25 exclusively. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18201 1 Now go on. 2 MR. TRAFICONTE: Now coming back to this, Your 4 3 Honor. First, let's go back to the stipulation that we just 4 had offered. Mr. Dignan is asking what the purpose of it 5 is. 6 It's a stipulation by counsel binding FEMA as to. 7 the intent and scope of its review of the plan and exercise. 8 I think on.that basis it speaks for itself. It has obvious 9 evidentiary relevance. It's a statement binding the agency 10 as to the nature of the review they conducted. 11 And secondly, as to the conditional nature of'.ne 12 stipulation, I just repeat. The conditional language is 13 quite clear. And I would hate to have to get into these 14 matters, and I certainly would not want to have to do that. 15 But Mr. Flynn has had opportunity, many opportunities, from 16 January 11 to the present date, to communicate to me with 17 regard to FEMA officials not being able to accept the 18 stipulation the form it is written here. 19 And in fact, upon direct inquiry by me in a 20 subsequent point as to whether there is a problem with the 21 language in this stipulation, Mr. Flynn that there had not l l 22 been. So, you know, he is free to say whatever he is 23 intending to say. But I want to clear for the record that 24 if he's taking the position now that he can today give me 25 the notice that the condition indicates, I think that would I \ Heritage Reporting Corporation
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I l 1 DONOVAN - CROSS 3.202 i l
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, 1 raise some evidentiary problems in and of itself.
's 2 MR. DIGNAN: It doesn't raise any evidentiary i
3 problem at all. i 4 To start with, he's not a party. So the 5 stipulation is binding on no party in the case. 6 MR. TRAFICONTE: Well, of course -- 7 MR. DIGNAN: Excuse me. It has no evidentiary 8 value. It can't bind me, it can't bind the NRC Staff. 9 FEMA's not a party. So it binds no party other than you. 10 Now that's point one. 11 Point two: If he did not part a time -- 12 MR. TRAFICONTE: It binds FEMA, Mr. Dignan. 13 That's what a stipulation is. 14 MR. DIGNAN: Yes, but FEMA is not a party to the (~') y 15 case. 16 MR. TRAFICONTE: Then why are they sitting over 17 there? 18 I think I see a FEMA witness. In fact, I think a 19 nonparty to the case has given him a prime facie showing on 20 the whole approval of the utility plant. 21 MR. DIGNAN: Do you think they are a party, or i 22 have you read the regs? l 23 MR. TRAFICONTE: Yes, I have read the regs. l l 24 MR. DIGNAN: Okay. 25 Now the question is, first of all, I mean if l 1 i ( Heritage Reporting Corporation I (202) 628-4888
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DONOVAN - CROSS 18203 l j-~ 1 you're going to get technical about it, your problem is Mr.
'- 2 Flynn put no time limit on when he would notify you. So 3 that takes care of that problem.
i l 4 The second thing is, do you seriously expect FEMA 5 to be bound when we know from the start of this conversation 6 that the agency Isas told Mr. Flynn that this has to be 7 modified? 8 I mean, are you really going to press the Board to 9 put that stipulation in and litigate the case on that basis? 10 MR. TRAFICONTE: Your Honor, I've made the offer. 11 It's a stipulation. 12 MR. DIGNAN: I object. I object to it being 13 received in the form it's been offered. 14 MR. TRAFICONTE: Knowingly and intentionally 15 entered into, and if you need the law on counsel being able 16 to bind their parties. 17 JUDGE SMITH: Well, we are not going to accept the 18 stipulation over -- aside from the evidentiary problems that 19 Mr. Dignan alludes to, which are very significant. We are 20 not going to accept the stipulation over the objection of 21 Mr. Flynn. I don't know how.we can. 22 23 24 25 O Hetitage Reporting Corporation (202) 628-4888
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,-- 1 JUDGE SMITH: He offered to modify it. Do you '- 2 want to hear it?
o 3 Didn't you say the stipulation isn't entirely out, 4 you had some modifications for it? 5 MR. FLYNN: That's exactly right, Your Honor. 6 JUDGE SMITH: Do you want to hear them? 7 MR. TRAFICONTE: I want the stipulation as it was 8 entered into adri tted. If the Board is not going to admit 9 it and has so ruled, if Mr. Flynn is prepared to enter into 10 now a new stipulation building on this one I certainly would 11 hear him. 12 But I want a ruling that if you're not going to 13 admit the stipulation, and I think you have ruled that you
/N 14 will not admit the stipulation.
U 15 JUDGE SMITH: No. We can't accept it. 16 No. The ruling is correct. 17 MR. TRAFICONTE: Then I would certainly hear what 18 Mr. Flynn has to say. 19 MR. FLYNN: Thank you. 20 There are two points. One is that in one respect 21 at least the standard to be applied is quantitative and that 22 is the part which deals with the alert and notification 23 system. 24 There are quantitative standards for the 25 performance of -- Heritage Reporting Corporation O- (202) 628-4888
l DONOVAN - CROSS 18205 f-s 1 (Mr. Traficonte conferring with colleagues.) !
"' 2 JUDGE SMITH: Wait a minute.
l 3 Don't you want to hear this, Mr. Traficonte? 4 MR. TRAFICONTE: I do. I'm sorry, Your Honor. 5 MR. FLYNN: What I was saying is that the 6 NUREG-0654 and related documents, I believe the reference is 7 FEMA REP 10 do establish a quantitative standard for the 8 performance of a siren system. So in that respect that the 9 statement was incomplete. 10 The other point that I wish to make is that -- as 11 I have already said today -- the review process really has 12 two parts, one of which is the evaluation which results in a 13 finding of reasonable assurance or no reasonable assurance.
/ 14 But the other part is the technical assistance.
15 And it is that second part which, in the 'ense that I've 16 described, le not part of the evaluation as such where FEMA 17 addresses the concerns about the efficacy of the plan in 18 achieving safety or due savings to be sure it is not s 19 quantitative standard 20 We were driven to this position, as the Board is 21 well aware, by the ruling on the Sholly/Beyea testimony and 22 the citation in that ruling to CLI-83-13 which made it very 23 clear that the standard to be applied was not a quantitative 24 -- that there was no particular level of dose savings to be 25 achieved. There were no threshold values for evacuation [ Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18206 times,. dose savings or a number of'other things to be 3 1
' 2 achieved by offsite emergency planning.
3 And that is what I intended to articulate and that ] 4 is the position of FEMA. 5 MR. TRAFICONTE: So with those additions would he ] 6 stipulate? 7 JUDGE SMITH: Well, how does that stipulation -- 8 how does-your explanation depart from the language that 9 you're being asked to ratify here? 10 MR. FLYNN: Perhaps the points are minor but the 11 distinctions are two: one, it is not 100 percent precise to 12 say there is no quantitative -- 13 JUDGE SMITH: Yes. I understand that.
/ 14 MR. FLYNN: I guess I'm just saying in defense of 15 FEMA that we don't ignore the level of dose savings to be 16 achieved by the plan. It is not part of the acceptance 17 criteria, but it is a concern.
18 Those are my points. 19 MR. TRAFICONTE: Your Honor, if he is prepared to 20 accept the stipulation with those two additional points we 21 would enter-into that or we would certainly accept that now. 22 JUDGE SMITH: Then what are you going to do with-23 it after you have it? 24 MR. TRAFICONTE: We would request the Board to 25 making findings of fact and law based on the nature of the O Heritage Reporting (202) 628-4888 Corporation
l-I DONOVAN - CROSS 18207 l 1
,e4 1 FEMA review as FEMA itself has now indicated it uniorstands
%' 2 that review.
3 And we would ask that the Board rule that in light 4 of the-nature of what FEMA is doing the Board cannot grant } 5 prima facie validity or FEMA finding of adequacy. Cannot i 6 shift the burden on to the Interveners to establish the 7 adequacy of the Utility plan under C-1. And that ultimately 8 Mr. Dignan and his client have not met their burden of proof 9 as to the adequacy of the Utility plan under C-1. That's 10 what we would do with it. Yes. 11 MR. DIGNAN: Needless to say I object to its 12 admission for that purpose. 13 More importantly, I'm just stating a fact. What (~' 14 the Board decides to do with it evidentiary-wise, because 15 you've got the problem that it's a stipulation between a 16 nonparty and party. 17 MR. TRAFICONTE: Could you articulate why that's a 18 problem if FEMA is here -- if FEMA is here giving testimony? 19 MR. DIGNAN: It's a problem because a stipulation 20 of this nature gets admitted into evidence normally under 21 the usual rules of evidence as an admission against 22 interest. And since there was no party there to have the l 23 admission against, you got a problem, as they say in Leach 24 and Liacos. 25 Now, the problem is, I -- just as.long as Heritage Reporting Corporation [l
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DONOVAN - CROSS 18208 s 1 everybody understands -- I as the Applicants' counsel and ]
\- 2 taking the position with the Applicant, we are not bound by 3 this stipulation. I leave it to the Board as to how it 4 wants to deal with this record.
5 MR. TRAFICONTE: Mr. Donovan -- 1 6 MR. DIGNAN: It's against the interest of any 7 party if it's an admission by Mr. Flynn. It's that simple. 8 It's not an admission of the Staff. It's not an admission 9 of the Applicant. It's not an admission of Mr. Brock. And 10 it's not an admission of SAPL. And so it doesn't go into 11 evidence. 12 MR. TRAFICONTE: Your Honor, that's a certifiable 13 question. I believe it's an admission of a party under the 14 rules of evidence to the extent that FEMA is at least enough 15 of a party to entertain or to have the NRC entertain ) 16 presumptive -- rebuttable presumptive status to its 17 findings. 18 And I frankly had researched that question prior 19 to and in preparation of offering the stipulation and I 20 would contend that it is cognizable as an admission under 21 the Federal Rules of Evidence. And that FEMA is enough of a 22 party *- let me put it this way. I grant Mr. Dignan that l 23 under NRC jurisprudence there is a cloud that hangs over the f l 24 nature of FEMA procedurally. And I think it's a line 25 drawing exercise pursuant to the issue on the table. l ~ Heritage Reporting Corporation N (202) 628-4888
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,- 1 When it comes to whether FEMA can -- something k- 2 like this can come in as an admission of a party under the 3 federal rules FEMA has got to be considered party enough for 4 that purpose.
5 MR. DIGNAN: Just to complete the record on my 6 objection. My colleague hands me Section 2.753 of the Rules 7 of Practice: " Apart from any stipulations made during as a 8 result of prehearing conference the parties may stipulate in 9 writing at any stage," and so forth and so on, "and the 10 Board may admit it." 11 MR. TRAFICONTE: Yes. Anu the Rules of Practice 12 also incorporate the Federal Rules of Evidence. 13 MR. DIGNAN: As a matter of fact they don't. I 14 wish they did. 15 MR. TRAFICONTE: Federal Rules of Evidence do not? 16 MR. DIGNAN: No. They are not incorporated, per 17 se. They are gone over one by one. There is Appeal Board' 18 holdings to that. I wish they did incorporate the rules of 19 evidence. But Mr. Rosenthal in no uncertain circumstances 20 sat me down on that argument. 21 MR. TRAFICONTE: Has the NRC adopted the rule of 22 admissions? The Federal Rule of Evidence governing 23 admissions? i 24 MR. DIGNAN: I have no idea. But the point I'm 25 getting at -- (202) 628-4888 j l _________.____.___________J
l l l DONOVAN - CROSS 18210 f- 1 JUDGE SMITH:. Let me cut you short there.
\' / 2 I have been presiding over these cases for a long 3 time and if it wasn't for the Federal Rule of Evidence I 4 would have no idea of how to run one of these cases.
5 They have run my cases. I don't care what the 6 Appeal Board says, they are indispensible in running any 7 type of organized case. O MR. DIGNAN: I couldn't agree with you more. But 9 he asked me if the regulations adopted them. I always 10 thought they had until I got told different by the Appeal 11 Board. 12 JUDGE SMITH: No. They haven't adopted them. 13 MR. TRAFICONTE: Your Honor, I would refer the 14 Board to Rule 801(d) (2) , admission by party opponent. 15 I believe that -- 16 JUDGE SMITH: All right. Here is where you are. 17 If you had a bilateral proceeding, you know, one party, one 18 opponent that would be one thing. 19 I'm not so much taken by the fact that FEMA is or 20 is not a party They're a quasi party in any event. But l 21 the thing is you don't have a bilateral case here. You have 22 a multiple lateral case. 23 MR. TRAFICONTE: Multiple parties. 24 JUDGE SMITH: Multiple parties. 25 MR. TRAFICONTE: Any one of whom could make a ; 18210 . g Heritage Reporting Corporation l (202) 628-4888 l
DONOVAN - CROSS 18211 7- 1 statement and -- 2 JUDGE SMITH: And bind all three. 3 MR. TRAFICONTE: No. Not bind. I don't dispute 4 for a moment that Mr. Dignan is free to challenge the 5 stipulation and to attempt to prove through, I take it, it 6 would be hostile cross-examination of Mr. Donovan that what 7 we've -- l 8 MR. DIGNAN: No. But it might be hostile cross-9 examination of Mr. Flynn. I 10 (Laughter) 11 MR. DIGNAN: Who entered into this foolish thing. I 12 MR. TRAFICONTE: It certainly would be hostile. l 13 MR. DIGNAN: Your Honor, let me put on the table
- /~'T 14 my other problem. I have a feeling that a carefully crafted
(_..) 6 15 stipulation of this nature could probably get my signature 16 on it. I admit to real trouble with going along with a 17 stipulation that gets entered into orally, especially wh'.. 18 one counsel is saying at the time, you know, I'm going to i i ' 19 check back home before I know it's good. 20 If you read it -- I know Mr. Traficonte and Mr. [ 21 Flynn always talk in great precision, there might be a lack l 22 of precision in some of the language. And that's one of the i f 23 real difficulties I have with this. l' 24 It was my understanding that Mr. Flynn and Mr. 25 Traficonte were trying to work out a carefully crafted (
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.- 1 stipulation. Indeed, I saw a draft of it. And as I told \l 2 Mr. Flynn if the right stuff comes back I'll put my 3 signature on it. Put this thing in and call it a 4 stipulation or admission against interest to a nonparty and 5 try to bind me or anybody else with it, I just think is out 6 of order.
7 MR. TRAFICONTE: The Applicants were represented 8 at his deposition, Your Honor. They had counsel there. I 9 see no objection. 10 MR. DIGNAN: Well, you don't see Ms. Selleck i 11 saying, I so stipulate, do you? 12 MR. TRAFICONTE: No. 13 MR. DIGNAN: You darn right you don't. 14 MR. TRAFICONTE: We weren't seeking nor does 15 Applicant, it seems to me, need to entertain a stipulation. 16 JUDGE SMITH: And is Ms. Selleck glad, too. 1 17 (Laughter) 18 MS. SELLECK: Very glad, Your Honor. 19 MR. TRAFICONTE: That's for sure. 20 MR. DIGNAN: You know what, Ms. Selleck never 21 thought of it. Never thought of going along with it. 22 Because she came back to me and told me. 23 JUDGE SMITH: Look, I have read this language. I 24 read it over and I'm never quite sure I ever catch up with 25 what he is saying here.
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DONOVAN - CROSS 18213
,g- 1 MR. FLYNN: I thought I was saying nothing more
^! +
U 2 than CIL-86-13.
.3 ~ JUDGE SMITH: That's the meaning I would give to 4 it. If that's the case what's the point?
5 If he is saying that FEMA does not evaluate plans 6 with preset dose savings standard in mind, and if'we're i 7 talking about level of safety we're talking about 8 radiological safety, not in normal industrial or traffic 9 safety. He's saying they evaluate the plan without the l 10 preset standards of dose savings as a standard. 11 MR. TRAFICONTE: Neither quantitative nor 12 qualitative. Mr. Flynn covers both of his basis in the ; 13 language.
'4 JUDGE SMITH: Let me say, I don't even understand 15 that. I don't even understand the qualitative aspect of it.
16 And I don't know how it's going to help us. l 17 In any event, even if this were in, how in the 1 I 18 world it gets to where you're going, I don't know. I mean, J 19 you took a great leap there. I 20 MR. TRAFICONTE: You mean into putting this in the 1 21 record at this point? 22 JUDGE SMITH: No. How you go from there? You had 23 to get that down at Disney World. You really feel lucky 24 that you can take this stipulation and where do you end up 25 with it, tell me again? ()s-Heritage Reporting (202) 628-4888 Corporation l l l l a j
o DONOVAN - CROSS 18214 [
, ; .1 You have thrown out all the FEMA presumptions?
(~s ' 2 MR. TRAFICONTE: I'll tell you what I would - you 3 mean what would we intend to do with this if it were in 4 record? 5 JUDGE SMITH: Well you just did. And you took j 6 very large leaps that I couldn't keep up with you. j 7 .MR. TRAFICONTE: In stages what we've received as 8 I think this.is a global -- 9 JUDGE SMITH: No. Let me get you on the right 10 track here. 11 You got a very difficult task ahead of you. You 12 have already given us one glimpse at it, where you're going 13 with it. Now you're going to have to be very, very i I N 14 persuasive or otherwise it's hopeless. (! 15 You're going from this to a very, very distant 16 goal. A lofty goal. And now take it a point at a time 17 because you just don't get there automatically. 18 MR. TRAFICONTE: FEMA has reviewed the Utility 19 plan. It has held an exercise, evaluated the performance of 20 the exercise and has come back and said that the Utility 21 plan, the compensatory plan is adequate. ; 22 Mr. Dignan has attempted to use that in two ways, 23 that finding. First, he wants to use the reasonable 24 assurance findings as a global finding as he sets forth in 25 his trial brief that ultimately all the issues -- there f Heritage Reporting Corporation (202) 628-4888 l
DONOVAN - CROSS 18215 j-s 1 really are no remaining litigable issues, because there's
-- 2 reasonable assurance of adequate protection, of adequate 3 protective measures as found by FEMA.
4 In addition to the global use he wants to use it 5 contention by contention and he wants to say, as we've 6 discussed over the last two hours before the break, that as 7 to, for example, the issue of whether the survey for the 8 especially handicapped is adequate, he wants a determination 9 that, well, FEMA has found that there is a survey in the 10 plan, it meets the -- or at least Mr. Donovan is prepared to 11 testify that it meets the FEMA standard. And Mr. Dignan 12 basically wants a ruling that -- again as a matter of law -- 13 that's the end of the inquiry. That contention basically is l 14 without merit. 15 Interveners are in the position of having to rebut 16 the prima facie showing or the rebuttable presumption of 17 adequacy of the plan and the exercise. 18 One of the ways we would attempt to rebut that is 19 to probe and explore the nature of the FEMA review. The 20 nature of the review from a substantive perspective. The 21 nature of the review from a procedural perspective. 22 This stipulation makes quite clear that from a 23 substantive perspective FEMA is not making a judgment about 24 adequacy that the plan and the exercise indicate that any 25 particular level of safety has been achieved for the people Heritage Reporting Corporation [\--) (202) 628-4888
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L DONOVAN - CROSS 18216 fg 1 in the Seabrook EPZ. 2 Another way of putting it is, FEMA has found i 3 adequate emergency preparedness, but it does not understand l 4 that that judgment entails a judgment about the level of 5 safety for the population in the Seabrook EPZ in the event ; 6 of an emergency. But those are two distinct things. 7 FEMA believes it's possible to make a judgment 8 that the plan is adequate and that the exercise was -- the I 9 performance was adequate. It can make that judgment, but 10 not make the judgment that the plan achieves any particular 11 level of safety. 12 And I don't think that's going to be resisted. I 13 think that's what the stipulation was designed to indicate. ()
\s/
14 MR. FLYNN: Well, I'll have something to say about 15 that when it's my turn. Go ahead. l 16 MR. TRAFICONTE: We wanted that in the record 17 because we would ask in findings -- and this is part of 18 course of the way we would try to rebut the presumption -- , 19 that there should be very little weight given to the FEMA 20 finding if FEMA is not making any judgment as to the 21 efficacy of the plan in terms of the level of public safety. 22 That whatever it is that FEMA is doing it is 23 basically a checklist or a de minimis review that is not 24 focused on the effectiveness of the plan. It doesn't have 25 the intent. I don't want -- Mr. Donovan and I have talked 1 O' Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18217 1 through this. I'm not trying to cast aspersion on his g-k- 2 review efforts. It's not the purpose of the FEMA review to 3 judge the adequacy of the plan in terms of the level of 4 public safety. 5 We want that in the record. We would ask the 6 Board to -- 7 JUDGE SMITH: Can you extract it on cross-8 examination? 9 MR. TRAFICONTE: This was a deposition transcript ; 10 at which point we -- 11 JUDGE SMITH: You'rt not going to get that. That 12 has too many flaws. I'm not going to take this with Mr. i 13 Flynn's disclaimers on it today and my difficulty of reading
~
14 it and understanding it to begin with, as an important 15 guidance in this case. 16 Another thing, too. You put the same argument to 17 this Board in so many different ways. And I just keep 18 thinking, now this time it has got to be a different 19 argument. And it is always the same argument. That there 20 is a level of radiological dose savings that must be 21 achieved by a plan. 22 MR. TRAFICONTE: Your Honor, this isn't even in J J 23 the terms of dose savings. 24 JUDGE SMITH: Well, what is it? What kind of . l 25 safety are you talking about? 18217 Heritage Reporting Corporation (dn) (202) 628-4888
DONOVAN - CROSS 18218 fs 1 MR. TRAFICONTE: It goes across the Board in terms s 2 of the whole-nature of the review. 3 JUDGE SMITH: Just tell me what kind of safety are 4 you talking about? 5 MR. TRAFICONTE: Public safety in the event of a 6 radiological emergency. 7 JUDGE SMITH: Nonradiological safety? P MR. TRAFICONTE: No. Radiological emergency. 9 MS. DOUGHTY: Your Honor, I believe it's a whole 10 matter of reasonable assurance. It's a qualitative 11 judgment. And I think Mr. Traficonte is trying to say that 12 FEMA hasn't made that kind of qualitative judgment about the 13 existence of reasonable assurance in providing its finding. s 14 The finding is just a checklist of the NUREG elements. (/
\_
15 JUDGE SMITH: I'm trying to get a meeting of the 16 minds of Mr~. Traficonte here. I can remember as if it were 17 just yesterday -- 18 MR. TRAFICONTE: And it was not. 19 (Laughter) 20 JUDGE SMITH: -- up in October, it was 18 months 21 ago. And you're standing there explaining to me about how 22 this Board has got to bring qualitative and quantitative 23 standards to play because no one else has done and all this. 24 Now how does your argument today differ from that 25 argument made then and repeated by Ms. Weiss several times, [ \ Heritage Reporting Corporation
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DONOVAN - CROSS 18219 73 1. and Mr. Backus and then by you'again and then by others I ( l
\2 2 upstairs here a year ago in January? How does it differ?
l 3 What is the essential difference?
.4 It is your burden now to distinguish between your 5 argument now and the argument you made then. If you don't 6 distinguish then you are just wasting your time and our 7 time, i 8 MR. TRAFICONTE: Well, the scope -
9 JUDGE SMITH: I think you're hedging. 10 MR. TRAFICONTE: I'm not hedging at all. 11 JUDGE SMITH: I'm trying to pin you down a preset 12 standard for radiation dose savings. 13- MR. TRAFICONTE: Your Honor, do you want me to 14 articulate such? 15 JUDGE SMITH: Just go ahead and explain it those 16 terms? Is that what you're saying? l 17 MR. TRAFICCNTE: Let me try to explain it in these 18 terms. 19 The NRC in its wisdom has adopted a set of I 20 planning standards against which an emergency plan is to be I 21 judged. In addition to those planning standards it set a 22 threshold requirement that no license will issue unless the 23 NRC is prepared to make a finding that there is rt;asonable 24 assurance that adequacy protective measures are taken. I 25 FEMA has taken the planning standards, set them [/)
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l DONOVAN - CROSS 18220 1 out in a document NUREG-0654, FEMA and the NRC. Set under t
\- 2 those planning standards further criteria, valuative 3 criteria, all with the end in mind of coming to the final 4 day and day of judgment with a reasonable assurance plan.
5 It appears that FEMA's understanding of that whole 6 enterprise does not involve an assessment, does not involve 7 an assessment or a judgment or evaluation of the level of 8 public safety achieved at the site in light of the planning 9 that has been done. 10 JUDGE SMITH: Is that the same level of public 11 safety that you were arguing in October of 19877 12 13 ' (~5) 14
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-4 1 MR. TRAFICONTE: It just feels like I did. \' 2 (Laughter) 3 MR. DIGNAN: I wasn't even in this case in 4 February.
5 MR. TRAFICONTE: I don't believe that. 6 JUDGE SMITH: Are you talking about a different 7 level of public safety or the same level? 8 You have made the same argument to us. Here are 9 16 planning standards. And in addition to that you've got 10 the first one. And that requires a finding of a particular 11 level of safety. 12 MR. TRAFICONTE: A particular level. Yes. It 13 requires a judgment. ( 14 JUDGE SMITH: A judgment. L 15 MR. TRAFICONTE: A judgment to be made that the 16 plan achieves a certain level of effectiveness. 17 JUDGE SMITH: And we rejected that. 18 MR. TRAFICONTE: Well, you rejected it in that 19 instance with regard to the admission of certain evidence 20 that had to do with the range of protective measures. 21 JUDGE SMITH: And we rejected it as a standard. 22 MR. TRAFICONTE: Then we are : lating ourselves. 23 JUDGE SMITH: Do you have any doubt that we did 24 that? 25 MR. TRAFICONTE: No. I don't have any doubt that Heritage Reporting Corporation O-i (202) 628-4888
1 DONOVAN - CROSS 18222
-s 1 you did that. I have questioned whether you're doing that '- 2 across the 16 planning standards.
3 In other words, the flow would be if this is the 4 l 4 nature of the FEMA review we would, in findings, propose 5 that that is not an adequate review for finding reasonable 6 assurance. 1 7 JUDGE-SMITH: Well, you have Mr. Flynn who said, 8 whatever we ruled with respect to your argument back on 9 Sholly/Beyea testimony and the level of public safety, 10 whatever we ruled that was what he was intending to say 11 here. He was paraphrasing our rulings. 12 MR. FLYNN: Yes. I agree. That's what I 13 intended. f~'j 14 JUDGE SMITH: That isn't an afterthought on his G 15 part either because that is totally consistent with FEMA's 16 evolution of their policy in this case. i 17 MR. TRAFICONTE: Your Honor, I would point out 18 something that has occurred to me on more than one occasion. 19 There is something deeply circular, is there not, about one 20 agency articulating in November of 1987 the law as to the 21 standard to be applied. 22 Another agency turning its oceanliner around and 23 moving from, let us call it a substantive review prior to 24 this ruling, and now adopting essentially a best efforts or 25 checklist review. And then having that agency come before i 4 Heritage Reporting Corporation
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I DONOVAN - CROSS 18223 s 1 Your Honors and state that they-have now conformed their \- - 2 review with Your Honor's reading of the law. And then 3 getting a rebuttable presumption attached. 4 Isn't that deeply circular? Aren't they just 5 basically telling you what you told them? 6 JUDGE SMITH: Well, their witnesses came in here 7 and you were there, you examined them. I thought that they 8 explained their position quite well. I don't know. We 9 accepted it. We bought it. 10 It may be just parallelism, I don't know. But 11 they said one element. One element. And then realizing 12 that they were not going to apply an quantitative standards 13 to dose savings. One element was our ruling. And then that /'s 14 focused their attention to 86-13. t. 15 So I guess maybe it is -- it may be circular, I 16 don't know. That's not my problem. It doesn't matter, 17 really. I mean, if they came in with a different standard 18 we can only apply the standard that the regulation provides 19 anyway. 20 MR. TRAFICONTE: Your Honor, I just think we can 21 resolve this pretty quickly. I don't think we're having 22 much of a dispute about the nature of the FEMA review. 23 Mr. Flynn has adopted the language of the 24 stipulation with his additional comments. It is exactly 25 what I think they do. It is what they think they do. It is I Heritage Reporting Corporation (202) 628-4888
l. l DONOVAN - CROSS 18224 1 what you think they should do. It is what Mr. Dignan thinks O, 2 they do. 3 For the sake of clarity why don't we permit the 4 stipulation with Mr. Flynn's additions to ge into the record 5 as a fairly clear statement of the nature of the FEMA 6 review? 7 MR. DIGNAN: Because it is not a fully thought out-8 and clear statement and it's irrelevant. 9 MR. TRAFICONTE: How can FEMA -- 10 MR. DIGNAN: Well, I will explain why it's 11 Irrelevant. 12 MR. TRAFICONTE: Please. 13 MR. DIGNAN: Beccuse it hit me that what I'm' 14 really arguing is relevancy among all the other infirmities 15 here. When you went into your adequacy speech again, which 16 is the same speech you have been making in this case since
. 17 the start.
18 And it goes to this. The Attorney General again 19 has insisted way before this Board, even the Chairman got 20 involved in this case, in the early appellate arguments, 21 they're down there looking for a bright line safety 22 standard. And I have been coming back at them ever since. 23 It first happened I think in the Appeal Board and saying, 24 give me the paremeters you're talking about. 25 I'm asking the basic question, what the heck is a
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DONOVAN - CROSS 18225 1 level of safety? Now engineers at least tell me -- if I ask. i0 2 them the question, is this safe? The answer I'm going to 3 get back from a good engineer every time and scientists is, 4 relative to what? 5 And this is the basic philosophical problem that 6 we have been having with the Attorney General from the word 7 cg> here. He wants a bright line up there. The fact of the 1 i 8 matter is, the level of what will happen to the public is 9 totally going to depend -- no matter what the plan is. 10 Whether it be our plan. The plan they like. Some other 11 plan. Or no' plan.
.12 The level of what I guess most people consider the 13 safety that will be accorded the public is most determined 14 in the particular instance by the particular event. That is 15 to say, if the event is not much of an event there can be no 16 plan and there will be no injury.
17 You can probably conjure up some absolute 18 catastrophic totally unlikely thing such as meteors together 19 hitting the reactor vessel on the perfect meteorological day 20 when the plan that everyone in this room could be the 21 greatest plan conceived by man would accomplish nothing. 22 Now that's the problem. They are asking for 23 something that simply does not exist in this world. Because 24 in the last analysis the Commission and the Congress before 25 them came up with the right words, reasonable assurance, O Heritage Reporting (202) 628-4888 Corporation l l l
l DONOVAN - CROSS 18226 1 that's all we can ever give. n' '- 2 But we'can't give them a bright line level of 3 safety. And we certainly -- not only we cannot give it in 4 the abstract, we certainly can't give it until a heck of a 5 lot of parameters are set as to what event are you talking 6 about? And what are you defining as safe and unsafe? 7 I'm repeating myself now because this is the same 8 argument you have given up in Concord. I am making the same 9 answer to it that I made in Concord. I probably changad a 10 few words because I'm getting a little better at making the 11 answer. But he's getting a little better at making the same 12 argument. It's the same duck dressed up in new feathers and 13 it quacks. 14 JUDGE SMITH: It's not new. It's not even new. 15 MR. DIGNAN: It still quacks though. 16 JUDGE SMITH: It's not new. You just lost it 17 before and you're losing it now. 18 19 20 21 22 23 24 25 I\ \-s! Heritage Reporting Corporation (202) 628-4888
7 . 1 DONOVAN - CROSS 18227 .
- 1 MR. TRAFICONTE: Your Honor, you say I'm losing \- 2 it. I just want to'have in the record -- I might say, in 3 light of the Board's indications for appellate purpose, I 4 would like to have it in the record the statement by FEMA as 5 to the nature of its review.
6 JUDGE SMITH: Mark it as an exhibit, offer it and 7 we'll reject it, and it's in the rejected exhibit file. I 8 ' don't think we can add any more to it. You certainly are 9 not going to get it into this record and have any kind of 10 finding that we can make based upon it. You will be 11 protected. Offer it. 12 MR. TRAFICONTE: I would like to do that. 13 Have we had it marked as the next Mass exhibit? 14 JUDGE SMITH: No. Os 15 MR. TRAFICONTE: Why don't we do that? I'm not 16 sure what the number would be. 17 MR. DIGNAN: Your next exhibit is 58. 18 MR. TRAFICONTE: Fifty-eight. I would like to have 19 the four-page document, which is an excerpt from the January 20 11 Donovan Deposition marked as Mass Exhibit 58 for 21 identification. 22 (The document referred to was 23 marked for identification as 24 Mass AG Exhibit No. 58.) l 25 MR. TRAFICONTE: And I would like to move that it i Heritage Reporting Corporation O- (202) 628-4888 d
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DONOVAN - CROSS 18228 ! i 1 be admitted into evidence. j 7~
\- 2 MR. DIGNAN: Objection.
3 JUDGE SMITH: Sustained. l 4 (The document referred to, l {1 5 having been previously marked I 6 for identification as 7 Mass AG Exhibit No. 58 was 8 rejected.) 9 MR. DIGNAN: Your Honor, we have a -- 10 MR. TRAFICONTE: I just want to add, if I might 11 add to my proffer of it. The purpose, I think, is quite 12 clear from the record, but just so it's absolutely clear. 13 The proffer is made for the purpose of establishing in the
/'"i 14 record the nature of the FEMA review that they engaged in.
N. 15 MR. DIGNAN: If we are finished with that, at the I 16 break time I promised the Board a report on the phone call 17 back to LILCO's lawyers. 18 What Ms. Sellick was told is this. LILCO 19 basically argued that the FEMA testimony was enough, and in 20 essence, it amounted to a finding, at least for winning the 21 paint. We, meaning i:LCO, we treated the 20 percent Krimm 22 memo as a reg guide in our argument, and argued that it was 23 entitled to deference. 24 MR. TRAFICONTE: As a what? 25 I'm sorry, I missed it. (m N/
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DONOVAN - CROSS 18229
-s 1 MR. DIGNAN: We treated it as though it were a reg Nl 2 guide in our argument, and argued that it was entitled to 3 deference. But we did not cite or argue the rebuttable i 4 presumption concept out of the regulation.
5 So I was right. The argument that this regulation 6 does it was never given to the Appeal Board. 7 JUDGE SMITH: I think the situation is probably 8 parallel with respect, for example, to the survey. 9 MR. DIGNAN: What situation is parallel? j 10 JUDGE SMITH: The situation, the arguments made, 11 the Appeal Board consideration with respect to the 20 12 percent. They argued it as a reg guide, whatever. 13 MR. DIGNAN: Right. But they did not -- my point
'T 14 being they did not make the argument that I made to you that
('Y 'u 15 50.47 is what operates to -- operates, to use the phrase, 16 "the wand" that gives it standing to have been accepted. 17 Remember, you said to me how could they have not 18 considered 50.47. And I said, well, I'm not saying they l 19 didn't consicer it, but I wanted to find out. 50.47 as a ! 1 20 reg was never argued to the Appeal Board as a grounds for 21 upholding the ruling of the Licensing Board. 22 JUDGE SMITH: All right. 23 MR. DIGNAN: Nor was it apparently argued to the 24 Licensing Board as a grounds for their ruling. 25 MR. TRAFICONTE: That is astonishing. Heritage Reporting Corporation T (202) 628-4888
l 1 DONOVAN - CROSS 18230 l 1 'MR. DIGNAN: No, it isn't. And the reason I say
\/ 2 .it isn't, because when you start talking about when 3 another -- I have always said I would hate to have anyone go 4 through a record of a case I've tried and figure out all the 5 mistakes I made, because they didn't make a mistake. The 6 key was, as I suspected, they didn't have a finding.
7 One of the big things on appeal was what was this. 8 Was this a finding, wasn't it a finding. They didn't have a 9 finding. They weren't in the position I was of having a 10 package labeled "A FEMA Finding of Adequacy". And so that's 11 why rebuttable presumption wasn't argued, because they 12 didn't have the underlying thing that you need to bring the 13 regulation into play. 14 So whether it would have carried the day, I don't l
")
v 15 know. But it is clear the Appeal Board did not have argued 16 to it the argument I was making this morning. 17 MR. TRAFICONTE: Well, Your Honor, this is not the 18 best time to interrupt my cross, but -- 19 (Laughter) 20 MR. DIGNAN: But it's a time. I 21 MR. TRAFICONTE: I felt I was really right in the 22 middle of something. But being five minutes to five, we 23 could probably break now without too much interference with 24 my overall strategy. 25 MR. DIGNAN: I've got another matter then before f\- Heritage Reporting Corporation (202) 628-4888 ,
l DONOVAN - CROSS 18231 1 we go. I' don't know. d 2 The next witnesses up for the Attorney General, I 3 think, are Mangan and Paolillo. Am I-pronouncing it 4 correctly? 5 MR. TRAFICONTE: Manned vehicles? 6 MR. DIGNAN: Mangan and Paolillo, they will be 7 your next witnesses? 8 MR. TRAFICONTE: Yes. 9 MR. DIGNAN: We made a call over to ask you'for 10 the notes, the questions they used in the survey and so 11 forth and so on. We have been. advised, and I'm not trying 12 to get pejorative, I'm just telling'you what we've been 13' advised, that our colleague who is in control of this, and I~ 14 don't know which one of them is, just has not had time to do
/'~}
D 15 that. 16 We think we need it for cross-examination. If you 17 represent to me we'll have it tomorrow, I'll cease. If you 18 won't, or the next day, if you won't, I've got subpoena 19 duces tecum that I'm going to ask the Board to sign and 20 serve 4o1. you. 21 .MR. TRAFICONTE: What are you seeking again? Have 22 you done this in a written form? 23 MR. DIGNAN: Yes, it's right here. Any and all 24 documents containing notes of inter'iews, conversations you 25 had with the resource providers, and so forth, l Heritage Reporting Corporation O. - (202) 628-4888 LL __ _. . _ _ _ - _ . _ _
DONOVAN - CROSS 18232 i 1 What we want is the -- [\-- \ 2 MR. TRAFICONTE: No, I meant had you made the l 3 request. 4 > MR. DIGNAN: Yes, we made the request to your 5 office. 6 MR. TRAFICONTE: In writing? Do we know what it 7 is nor is it -- 8 MR. DIGNAN: I think it was on a phone call. I 9 MR. TRAFICONTE: Okay. All right. 10 ML. DIGNAN: And the answer we got is nobody had 1 11 time to turn to it. 12 MR. TRAFICONTE: All right. 13 MR. DIGNAN: And we need it, and so I guess what gA 14 I'm saying is if you tell me ' I'm going to get them, let's O 15 say if we get it by Monday morning, I will cease and desist. 16 Otherwise, I'm going to ask for a subpoena duces tecum, and 17 we'll do it the hard way. We'll drag him -- 18 MR. TRAFICONTE: There is no need to do that. We 19 are busy trying to meet an April 10 filing. But I'll 20 certainly try to get it. Monday mid-day,, how is that? 21 MR. DIGNAN: Done. I will withhold the subpoena I 22 request. 23 MR. TRAFICONTE: Could I have it just so we know 24 what it is? ! . 25 MR. DIGNAN: Sure. O Heritage Reporting Corporation (202) 628-4888 l t _ _ . _ _ _ . _ _ _ _ _ _ _ _ m
DONOVAN - CROSS 18233 7- 1 (Document proffered to counsel.) ( 1
' ' ' 2 MR. DIGNAN: You are served.
3 (Laughter.) { i I 4 MR. TRAFICONTE: Your Honor, I was intending to j 5 break. 6 JUDGE SMITH: It would be helpful if the Board had 7 a better idea of the schedule. Remember, we received a 8 letter from Ms. Talbot with a schedule and we said that the 9 schedule should be run through the other parties before. 10 And apparently you had now agreed upon a sequence. 11 MR. TRAFICONTE: Well, we were told -- actually we 12 stopped giving the Board copies of those letters because we 13 were told the Board wasn't interested in that. g"7} 14 JUDGE SMITH: No , we don't want unilateral D' 15 proposals for schedule until there has been an effort to 16 work them out with the parties. 17 MR. TRAFICONTE: All rioht. That makes more 18 sense. 19 JUDGE SMITH: No, we are very interested in -- 20 MR. TRAFICONTE: I was puzzled by that myself. 21 All right. 22 What letter do you have in front of you? 23 JUDGE SMITH: We have March 24. 24 MR. TRAFICONTE: Yes, we have an April 3 update to 25 that which is in the same format. ('\ds) Heritage Reporting Corporation (202) 628-4888 i
DONOVAN - CROSS 1823e . I 1 MR. DIGNAN: lbs, yes. O 2 JUDGE SMITH: Yes. Do you have an agreed upon' I 3 schedule now? l 4 MR. DIGNAN: Well, I've been told what they want S to do. 6 MR. TRAFICONTE: We have an agreement on it. 7 JUDGE SMITH: Well, I thought that the very first 8 day of the hearing the parties stayed and worked out some 9 type of sequence. 10 MR. TRAFICONTE: We'have, except, Your Honor, just 11 as the proceeding goes forward and the schedule is changed, 12 different witnesses lose their avai]. ability. I 13 JUDGE SMITH: Right, 14 MR. TRAFICONTE: And some others get it, which l kNr" ! s i 15 requires that we reorder the sequence of the clusters. ;
'16 .That's all.
17 MR. DIGNAN: And the one thing you have told me 18 about that schedule -- you've got to underctand when they 19 schedule a thing, all they do is put their side's witnesses 20 down. You've got to assume, because we're trying it by 21 clusters. 22 MR. TRAFICONTE: Right. 23 MR. DIGNAN: When they depart the stand, the panel 24 of ours will come up behind them. 25 MR. TRAFICONTE: Right. Heritage Reporting Corporation O. (202) 628-4888 + - .__-_______ _
DONOVAN - CROSS 18235 1 MR. DIGNAN: I assume there is allowance in the O 2 time stream on your assumption on how long your cross is 3 going to be of our panel. 4 MR. TRAFICONTE: Yes, yes. 5 JUDGE SMITH: You realize as we-sit here right nov 6 this Board does not know if this proposed schedule or any 7 proposed schedule is agreed upon, opposed or what by the 8 other parties. 9 MR. DIGNAN: It's unopposed. 10 MR. TRAFICONTE: It's unopposed. 11 JUDGE SMITH: It's not opposed? 12 MR. TRAFICONTE: It's not opposed, Your Honor. We 13 have been working out as well as we can the sequence of the T 14 clusters. 15 MR. DIGNAN: And the only thing you should know, 16 as I have told Mr. Traficonte, thtt I assume that if I rile 17 my motion on Goble and I succeed on it, this is what he 18 calls the Sholly Two Panel, or whatever you're calling it. 19 Sholly Four, Sholly Four, and I get the same ruling that 20 that Goble cluster, he's got somebody to fill that up. 12 1 And as I understand it, you have another panel 22 that will be' ready to come forward if Goble doesn't go. 23 MR. TRAFICONTE: Which is why we just wanted to 24 have a ruling earlier so that we could make the changes in
.3 the schedule. j f9 \/
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DONOVAN - CROSS 18236 1 MR. DIGNAN: Maybe Your Honor wants to give.us
'\# 2- another one of those tentative rulings based on whether or 3 not cash should be paid for the airline tickets.
4 (Laugher) 5 JUDGE SMITH: We missed that observation. 6 MR. DIGNAN: I was saying maybe you could give us 7 the tentative view as to whether cash should be paid for the 8 airline tickets as you did the last time. 9 (Laugher) 10- MR. TRAFICONTE: Well, from a budgetary 11 perspective? 12 (Laughter) 13 JUDGE SMITH: . ell, let's adjourn for the night. 14 ' (Whereupon, at 5:00 p.m., the hearing was O. 15 recessed, to reconvene at 8:30 a.m., Friday, April 7, 1 16 1989.) 17 18 19 b 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 t - - - - - - _ - _ _ _ _ -
_ - _ _ _ = _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____ . _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ . 1 I CERTIFICATE ( \'
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l l This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter ; l of: 1 Name: Public Service Company of New Hampshire, et'al. J' (Seabrook Station, Units 1 and 2) Docket No: 50-443-OL l 50-444-OL l (Off-site Emergency Planning) Place: Boston, Massachusetts Date: April 6, 1989 were held as herein appears, and that this is the original O transcript thereof for the file of the United States Nuclear Regulatory Commission taken stenographically by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
/S/ AV (Signature typed) : Donna L. Cook Official Reporter 1 Heritage Reporting Corporation l HERITAGE REPORTING CORPORATION (202)628-4888 s _ _ _ _ _ _ _ _ _ .}}