ML20248F562
| ML20248F562 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/10/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8445 ASLBP, OL, NUDOCS 8904130112 | |
| Download: ML20248F562 (173) | |
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- 1 ATOMIC SAFETY AND LICENSING BOARD i
In the Matter of: )
) Docket Nos. i PUBLIC SERVICE COMPANY OF ) 50-443-OL I NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING EVIDENTIARY HEARING Pages: 18355 through 18523 Place: Boston, Massachusetts Date: April 10, 1989 s a m e = = = = = = mmm mm me s==mmmm mmmm m mmmmmmmm mmmmmmmmmmm m m mm m m m e = =
n kY HERITAGE REPORTING CORPORATION O OSI&fRgwers 1224 L Street, N.W., Sidte 600 WanWagton, D.C. 20005 Q$"$@Nd$$00 g3 (2@ 6M T 1
18355 , 1 l'~h UNITED STATES NUCLEAR REGULATORY COMMISSION o kI ATOMIC SAFETY AND LICENSING BOARD-I i/ 1 I In the Matter of: ) ]
) Docket Nos. ]
l l PUBLIC SERVICE COMPANY OF )- 50-443-OL NEW HAMPSHIRE, et al., ) 50-444-OL
) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING EVIDENTIARY HEARING Monday April 10, 1989 Courtroom No. 4 Thomas P. O'Neill, Jr.
Federal Building 10 Causeway Street Boston, Massachusetts O The above-entitled matter came on for hearing, pursuant to notice, at 1:00 p.m. BEFORE: JUDGE.IVAN W. SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE KENNETH A. McCOLLOM, Member i Atomic Safety and Licensing Board j U.S. Nuclear Regulatory Commission I l Washington, D.C. 20555 JUDGE RICHARD F. COLE,-MEMBER. Atomic Safety and Licensing Board l U..S. Nuclear Regulatory Commission ! ( Washington, D.C. 20555 { l
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18356 [ APPEARANCES: V For the Applicant: THOMAS G. DIGNAN, JR., ESQ. GEORGE H. LEMALD, ESQ. KATHRYN A. SELLECK, ESQ. JAY BRADFORD SMITH, ESQ. JEFFREY P. TROUT, ESQ. GEOFFREY C. COOK, ESQ. Ropes.& Gray One International Place Boston, Massachusetts 02110-2624 For the NRC Staff: SHERWIN E. TURK, ESQ. ELAINE CHAN, ESQ. EDWIN J. REIS, ESQ. Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555: i For the Federal Emeroency Manacement Acency: O H. JOSEPH FLYNN, ESQ. ( ,/ LINDA HUBER McPRETERS, ESQ. i Federal Emergency Management Agency 500 C Street, S.W. Washington, D.C. 20472 For the Commonwealth of Massachusetts: JAMES M. SHANNON, ATTY. . GEN. JOHN C. TRAFICONTE, ASST. ATTY. GEN. ALLAN R. FIERCE, ASST. ATTY.. GEN. PAMELA TALBOT, ASST. ATTY. GEN. MATTHEW BROCK, ESQ. LESLIE B. GREER, ESQ. , Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, Massachusetts 02108 Heritage Reporting Corporation
, (202) 628-4888
v. q i j i 18357 1 APPEARANCES: (Continued) For the State of Net Hampshire: GEOFFREY M. HUNTINGTON, ASST.. ATTY. GEN. State of New Hampshire-q l 25 Capitol' Street . l
' Concord, New Hampshire 03301 For the Seacoast Anti-Pollution Lenaue ROBERT A.fBACKUS,._ESQ.
j Backus,LMeyer.& Solomon 116 Lowell Street 1 P.O. Box 516 j Manchester, New Hampshire 03105 JANE DOUGHTY, Director l Seacoast. Anti-Pollution League j f 5 Market Street l Portsmouth, New Hampshire 03801' Egr the Town of Amesburv: BARBARA J. SAINT ANDRE, ESQ. Kopelman and Paige, P.C. ; O4 77 Franklin Street- 1 Boston, Massachusetts
. WILLIAM LORD Town Hall ,
Amesbury, Massachusetts 10913 i For the City of Haverhill and Town of Merrimac: l l ASHOD N. AMIRIAN, ESQ. l l P. O. Box 38 : Bradford, Massachusetts 01835 For the City of Newburvoort: BARBARA J. SAINT ANDRE, ESQ. JANE O' MALLEY, ESQ. ; Kopslman and Paige,.P.C. < 77 Franklin Street Boston, Massachusetts 02110 l I' N/ Beritage Reporting Corporation I (202) 628-4888 L
m 18358 APPEARANCES: (Continued)' For the Town of Newbury: R. SCOTT HILL-WHILTON, ESQ. Lagoulis, Clark, Hill-Whilton & McGuire 79 State Street Newburyport, Massachusetts 01950 For the Town of Salisbury: 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
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For the Atomic Safety and Licensino Board Panel: ROBERT R. PIERCE, ESQUIRE Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory. Commission Washington, D.C. 20555 4 Heritage- Reporting Corporation (202) 628-4888 _____-___-_ - _ D
1 i 18359/18360 j
"" l O HlINESSES: p_IRECT CROSS REDIFECT RECROSS EXAM Richard W. Donovan by Mr. Traficonte 18385 (Continued)
EXHIBITS: IDENTIFIED RECEIVED REJECTED REECRIPTION
.1 Mass AG: I
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62 18478 18495 Multi-page j document: ] copy of memos, Supp. 1,'and
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, . comments 1
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18361 I' '\ 1 EBQGEED1E9E
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2 JUDGE SMITH: Good afternoon. 3 Before we take up any business that you might 4 have, the Board wants to give you some information which may 5 affect your scheduling of the PAR testimony. 6 Judge McCollom has some conflicts and we want that 7 particular testimony to be presented at a time when he is 8 sure to be here. Judge McCollom will be leaving Wednesday 9 afternoon April 12th and be gone the balance of this week. 10 And then he will also be leaving Wednesday, late Wednesday 11 afternoon on the 26th and the gone the balance of that week. 12 We will go quorum, the Board will go quorum rule. 13 That is, with the Chairman and one other member during his
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(3) 14 absence, but we want to assure that the protective action i 15 recommendation testimony is heard while he is here. q J 16 Is there any other preliminary business? l 17 MR. DIGNAN: Your Honor, just to reflect on the l 18 record that I have distributed to the Board and parties the 19 copies of an objection in the nature of a motion in limine j 1 20 to the admission of the evidence of Dr. Gorden Thompson, et 21 al. It is being formally filed from my office as we speak, l 22 with the secretary and so forth. And I indicated to my 23 Brother Traficonte that I would be prepared to argue this 24 whenever it is convenient for him. 25 JUDGE SMITH: Okay.
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v 18362 I \ 1 MR. DIGNAN: In addition, just to advise the Board I
'ws i 2 and parties, the ETE testimony of the Applicants will be l 3 filed today and will be received by everybody tomorrow. And l 4 the balance, as I understand it, Mr. Traficonte can correct 5 me if I'm wrong, but the balance of the Mass AG testimony )
l 6 will be in our hands tomorrow; is that correct? j 7 MR. TRAFICONTE: Yes, God willing. 1 8 MR. DIGNAN: Okay. But I was going to say, and we l 9 will be filing the balance -- assuming that occurs, we will 10 be filing the balance of our case next Tuesday. As i 11 indicated with the Monday holiday, we will be making a j 12 filing on Tuesday. It will be in everybody's hands 13 Wednesday. }
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f (_ j 14 I wanted to put on the record we are in receipt of i 15 a piece of testimony from SAPL. The reason we're not 16 responding to that seven days later, and this was the 1 17 problem I said was going to come up with the staggered j ! i 18 filing by the AG, is that will wrap in with the piece of l 19 testimony which will respond also to the AG's testimony in 20 the same area. I i 21 So the whole Applicants' package will come in at l 22 one time, other than the ETE which is going out today. 23 MR. BACKUS: Mr. Chairman, I appear today. Having l 24 reviewed the transcript of last Thursday, I can take a 25 position on the certification issue you were discussing at l l n (_) Heritage Reporting Corporation l L (202) 628-4888 l 1 l l
v-18363
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) I that time. But I gather.there is not a proposed 2 certification motion available today.
3 I would just note for the record that after 4 discussion of this, it was going to be SAPL's position that 5 we would have opposed certification on the question you'were 6 discussing on Thursday's transcript. 7 JUDGE SMITH: You'd be taking a position contrary 8 to the Attorney General? 9 MR. BACKUS: Well, I don't know if the Attorney 10 General has made a final decision on what position.to take. 11 But we would oppose certification. And very simply, we feel 12 that this issue was already going to be before the Appeal 13 Board on the appeal'of the New Hampshire decision, and there
,n 'l 14 is no need to set it up on a separate appeal.
15 I also came today thinking that perhaps we were 16 going to get to the Attorney General's motion to produce, 17 which we're interested in. I don't know if that's going to 1 18 be the case or not. 19 MR. TRAFICONTE: Your Honor, before we proceed, I 20 would like to comment on the position the Attorney General 21 is taking on the certification question. 22 I think the record is very clear that we didn't 23 oppose it last Thursday. I would just want to reserve my 24 right to oppose any specific motion that has any specific 25 question. Obviously, we have 1.0 intent of giving our l l l .- Heritage Reporting Corporation (202) 628-4888
v 1 18364 1 agreement to the certification of any proposal that Mr. 2 Dignan is creative enough to come_up with. 3 As to the motion to compel documents, I was also 4 under the impression that the first order of business today l 5 would be discussion of our motion against FEMA to compel. 6 Mr. Flynn tells me that he would like to file a written l 7 response to our motion; that the documents are now available 8 to him only perhaps this afternoon here in Boston. 9 But I-think he will agree that we could go forward 10 with one document that we are moving to compel and that he's 11 resisting, because it is a document already marked, that-I 12 have already inquired with regard to Mr. Donovan about, and 13 I would have further inquiry, I know, right now.if my motion O) ( 14 is granted. 15 So if we could just proceed with that portion of 16 the motion, I think it would basically save us all some 17 time.
. 18 Mr. Flynn, that is a fair representation of --
19 MR. FLYNN: Yes. The document of which Mr. 20 Traficonte is speaking, the particular document which has
- 21. already been marked for identification is Mass AG Exhibit 22 No. 59, and two and a half pages of that document were 23 redacted. It's the missing two and a half pages, or the 24 redacted two and a half pages about which we are willing to i
25 present oral argument tomorrow morning. l Heritage Reporting Corporation (202) 628-4888 1 l
v 18365 1 MR. DIGNAN: Do you want to provide red?cted [V') 2 information so-we can be familiar with it? 3 MR. FLYNN: Oh, yes. I'm'sorry, I should have 4 said that. That will be provided to the Board for in camera 5 inspection. It's at the hotel now, and I will make it 6 available at the first opportunity,.which I assume will be 7 tomorrow morning. 8 JUDGE SMITH: Oh. Well, that doesn't give us an 9 opportunity to prepare for.it then, does it? 10 If that's the way it has to be, that's the way it 11 has to be. 12 MR. FLYNN: If you prefer, I could make 13 arrangements to deliver it to you this evening. A~ ( / 14 JUDGE SMITH: No, that's all right. See'if you q 15 can give it to us as soon as pessible tomorrow morning. 16 MR. FLYNN: Yes, Your Honor. 17 MR. TRAFICONTE: Your Honor, I'm going to take the 18 opportunity to argue now the motion to strike our PAR 19 testimony. The Board has just mentioned the scheduling 20 issue, and on our side of the table we have scheduling 21 issues, obviously. 22 I've looked at the motion that Mr. Dignan 23 distributed, and I'm prepared to respond to it right now. 24 If the Board wants maybe a minute to look at it. Maybe it-25 has. l (. Heritage. Reporting Corporation (202) 628-4888 l
.v-18366 lT 1 JUDGE SMITH: Well, I've read Mr. Dignan's motion.
U 2 Perhaps after the break. > L 3 MR. TRAFICONTE: That's fine. 4 MR. DIGNAN: I have one other matter, and that is, l 5 we have made a request of the Attorney General for certain 6 documents =in connection with the Lonergan and the Barnicle 7 testimony. 8 Mr. Traficonte will correct.me if I'm wrong, but l l 9 I'v advised my people we've been told that none of these 10 documents will be produced. And I have here a formal-11 subpoena duces tecum which I would like the Board to sign so 12 that we can serve it in connection with their appearance 13 here, unless Mr. Traficonte wants to take the subpoena duces () 14 tecum and take a look at it himself and see if we can reach l 15 some accommodation. 16 MR. TRAFICONTE: The' subpoena is really not 17 necessary, Your Honor. There isn't any issue of compelling. 18 If the Board's pleasure is that Mr. Dignan's motion for l l 19 these documents is granted, obviously we will abide. If you j, l 20 sign the subpoena, we will move to quash it as to these 21 documents. The issue is simply the entitlement on his part
- 22 to the documents he is requesting. 1 l
23 To put it into context, we have filed some hearsay 24 testimony, as the Board is aware, with regard to various 25 issues. Mr. Dignan, over the cource of the last week, has I Heritage Reporting Corporation (202) 628-4888 mm-___m.u_:-__ _M
v. l 18367 1 requested certain backup materials, written materials that 2 we may or may not have connected to the hearsay testimony, 3 the hearsay testimony that we filed under the witness of 4 Mangan.and Paolillo, We have this' morning provided copies 5 of the written documentation requested. 6 Mr. Dignan has also requested-the written 7 documentation' connected to the Barnicle'and -- someone else?
'8 MR. DIGNAN: Lonergan.
9 MR.'TRAFICONTE: And Lonergan testimony. Upon 10 review of that' documentation, we are of the view that it is i 11 much more than, in fact of a different strip'than the 12 material we have this morning produced on Mangan and 13 Paolillo. 14 The Mangan and Paolillo material is essentially 15 the witness's own handwritten notations of conversations 16 that the investigators had, which conversations are then ; 17 repeated in the form of hearsay testimony. And we have l 18 produced that written backup this morning. 19 The Lonergan and Barnicle hearsay testimony, the 1 20 written documentation that was generated during its 21 formation, does not stand in the same relationship at all. 22 It is not a questionnaire, for example, where the hearsay 23 witness has recordsd the answers to certain questions and ; l 24 has now come in and provided the hearsay testimony. It I 25 doesn't stand in that relationship at all. ( Heritage Reporting Corporation (202) 628-4888
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18368 1 In fact, we view'it as an effort on the part of' ) 2 'Mr. Dignan at this juncture'te do further discovery on us 3 that is not inticatel.y connected to the testimony that we 4: filed. 5 So we would resist his efforts in this regard 6 ' simply because there has been no showing that -- first of
'7' all, discovery is closed, number one. And number two, 8 assuming he wants to get it through a subpoena duces tecum, 9 it isn't intimately linked to the testimony of the witness.
10 So we would resist it. I 11 And the final point:I would make is that nothing ) i 12 hinges on the subpoena aspect; nothing.that I can see. ; 13 MR. DIGNAN: Your Honor, may I articulate what we l 14 have asked for? 15 First of all, the Board will recall that in the l i 16 case of Katherine Barnicle, this is a piece of hearsay 17 testimony of interviews which she has had with various i 18 people who are in charge of special facilities. 19 JUDGE SMITH: All right. Where would we recall 20 that, Mr. Dignan? 21 MR. DIGNAN: I'm sorry, Your Honor. 22 JUDGE SMITH: Where -- 23 MR. DIGNAN: It's been prefiled. It's been 24 prefiled. i 25 JUDGE SMITH: All right. l
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4 I 18369 1 g
'l MR. DIGNAN: And what the testimony is,'I'm.
i 2' confident you would find from~a review ~of it, is a series of 3 pieces in which Ms. Barnicle sets forth what'she was told byl. q
.4- various directors or people in charge ofLvarious special 5 facilities in the.way of such things'as how many phone lines
- 6 .they have, and their judgment ~as to how-difficult it'would 7 be or not be to evacuate the' facility and soffosth and so-8 on.
-l 9' sa l With respect to.the Lonergan piece, that 10 piece in which Mr. Lonergan purports to set forth the 11 results of interviews he had with various people who are in 1
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12 charge of setting up, or in~ charge of.various facilities 1 13 that will become congregate. care centers. 'And the basic O (j 14 questioning he apparently did was how difficult would it be 15 to set up the plan and so forth. And as my' brother has-16 indicated, it is hearsay. 17 Now what we have asked for, and I think.this is l 18 important, is in three categories and they are' essentially, ' 19 I believe, identical as they are drafted. I will read frown 20 the proposed Barnicle subpoena. 21 "Any and all documents containing notes of the l 22 interviews or conversation referred to by Katherine Barnicle 23 in the Commonwealth of Massachusetts testimony of Katherine 24 Barnicle and statements" and so forth, quoting the title of ; 25 the testimony. Heritage Reporting Corporation -l (202) 628-4B88 l L l y
w 18370 1 "Two.. Any and all documents containing questions J 2 asked during these interviews and conversation. 3 "Three. Any and all documents containing 4 instructions as to how to conduct these interviews and 5 conversations." 6 And then there is a definition of document as 7 being equal in scope of the usage of the terms " documents 8 and tangible" things of the Federal Rule of Civil Procedu're 9 34-A. l 10- Now here you are being offered total hearsay. I l 11 mean nobody doubts that it's hearsay. I don't how you 12 cross-examine a hearsay witness who is reporting a bunch of i 13 interviews unless you could have their notes. If you don't-() 14 have their notes, there is absolutely no test or check.on 15 the accuracy of the hearsay testimony. And it seems to me-l- 16 if they are unwilling to produce the notes of the interviews 1 17 and aren't willing to produce what was the form.to ask the 18 questions, if any, or tell us there was none, then the 1 19 solution is to exclude the hearsay testimony.and require the l l 20 people who were interviewed to come JLn here. l 21 I don't think there is anything unusual about ttis 22 request. And in terms of discovery. closing, the problem is , 23 I didn't know whether it was Katherine Barnicle or Mr. 24 Lonergan or who was testifying until the testimony was 25 served upon us. Heritage Reporting Corporation (202) 628-4888 j
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18371 l) 1 So I think this objection just has no merit. V 2 Everything we have asked for, I respectfully suggest, is 3 directly relevant to cross-examination of a hearsay witness 4 of this nature. 5 Now we could have come in here with just a flat 6 objection that it's hearsay. .I' don't know how far that 7 would or would not have gone, but we.are not planning to do 8 that. But I think we are entitled to get the notes of the 9 actual interviews, the way the interview was conducted. Or i 10 otherwise we are just saying -- there is no other way I know 11 that we can cross these people, I really don't. I 12 I suppose we could ask them ad infinitum what did 13 you say to this guy and what did he say back to you. My
)) 14 guess is'without the notes in their hands they wouldn't 35 remember it anyway. And it just seems to me that that.would 16 be rank inefficiency. So I pull back my remark that we 17 can't cross them. Yes, I can cross them by the hour one by l 18 one, and I don't think the Board really wants that.
19 MR. TRAFICONTE: Your Honor, the argument that Mr. 20 Dignan just made is the argument that convinces me that it 21 was appropriate for un to produce the Mangan and Paolillo 22 materials. So we need to be clear here that there is 23 something else being requested' . 24 The Mangan and Paolillo materials which I produced 25 to my brother this morning, or this afternoon, are precisely (_/ Heritage Reporting Corporation (202) 628-4888
1 i 18372
'1. what he just described. It is the written record of an 2 interview that a hearsay witness undertook, that he then i
3 repeats in the form of hearsay testimony. 4 Appropriately, I believe,. the Applicants sought at 5 this juncture, although I think they could have done it some 6 time closer to February 21st when they first saw the 7 testimony, but that aside, the Applicants sought the written 8 record that supports the hearsay, and we have produced it. 9 The point is the argument has to begin at the i 10 point at which this material is different from that, because l
.l 11 I think it's fair to say that if this material were just ]
12 like that, they would have it now as well.. And we are not, 13 we're resisting that. O 14 So I haven't heard Mr. Dignan respond to the point ig f 15 really that -- 16 MR. DIGNAN: Well, what is it that you have done . 1 17 then? I mean you've got a -- I've told you what I've asked j i 18 for. One way you can respond, if it be the truth, is to say -! 19 we don't have any interview notes. I am going to take your 20 representation. I assume it won't be made unless it's true. 21 What I've asked for is what I've said, and that's 22 precisely what I got in Paolillo. .And if what your problem 23 is is interspersed with that is stuff you don't want me to 24 see, then you've got a problem. And the problem is solved I 25 by giving it to the Judge and asking him whether you've got l Heritage Reporting Corporation (202) 628-4888 E---_-----.------------_-----_---------- 1
I 18373 ,
- 1. some privilege or something to keep that' interspersed' 2 material away from me.
3 4 , .J 5~ 6 7 8 9 10 u 11 12 13 14 15 16 17 18 19 !
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v q I I 18374 [D 1 MR. TRAFICONTE: Two points.
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2 If we were going to produce with regard to the 3 Barnicle and Lonergan hearing testimony what we just j 4 produced with regard to Mangan it would require going j 5 through a collection of documents and redacting material l 6 that has nothing to do with the hearsay statements of those 7 witnesses. It is not connected to their hearsay statements. 8 Tha.t material we don't believe he is entitled to, ( 9 number one, l 10 Number two, Mr. Dignan argues that he can't cross 1 11 the testimony. That's rather peculiar for this reason. In l l 12 major part Lonergan and Barnicle are making factual
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13 representations. l A) 14 It's hearsay granted. But if the representr.tions 15 are not correct the Applicants can simply rebut by going out 1 l 16 and in fact subpoenaing the out of court declarant. I 17 We are making statements in this testimony about 18 the nature of the nursing homes, the resources. The 19 conditions at various locations at congregate care centers, 20 et cetera. Those are facts. 21 If the facts that we have stated in our hearsay 22 testimony are not accurate it's a wide open field for a 23 very, very persuasive rebuttal. 24 So the idea that this testimony cannot be cross-25 examined is rather odd given the nature of the hearsay that A k) Heritage Reporting Corporation (202) 628-4888
18375 1 we're talking about. 2 JUDGE SMITH: To the extent that the documents do 3 -contain interview notes in addition to other material what 4 is wrong with redacting the material that is not 5 interviewed? 6 MR. TRAFICONTE: That was the proposal I had made 7 to try to settle this. In fact we will, accept that with 8 this understanding, that we will redact those portions of l I I 9 the documents that do not -- that reflect information that 10 isn't part of the scope of the hearsay testimony.
- 11. MR. DIGNAN: Let me ask you something, Mr.
12 Traficonte. Is some of th&t -- if I could use the 13 expression -- exculpatory? Is that why you don't want me to () 14 see it, is because it would favor us as opposed to your 15 case? 16 MR. TRAFICONTE: No. Not at all. It has to do 17 with material, the information and facts we gathered. We 18 did a lot of ground spade work here on the nursing home 19 situation. And we are loathed, quite frankly, to provide 20 all that material to the Applicants. They can do the same 21 work that we did, i 22 We understand that we've got hearsay as.to certain l
- 23 representations of fact. To the extent that we've got a 24 documentary record as to that portion of the hearsay we 25 would provide that. '
es
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v 18376 j 1 But the problem'is it's all in the same set of 2 documents and they're going to get a lot more information 3 that is not connected to or within the four corners of our 4 hearsay testimony.
- 5. And he has made no argument as to why he needs 6 that.
7 MR. DIGNAN: Could you tell me how interspersed 8 and interview notes are materials that are not relevant to 9 the. interview? 10 MR. TRAFICONTE: Sure. You ask somebody about, 11 for example, how long do you.think it would take to clear 12 that space and make it available for a congregate care 13 center? How many personnel do,you have that could do that? () 14 You get some answers. 15 The answers then appear in the form of our 16 hearsay. When the investigator takes those written notes I 17 think that's relevant. The next question might.have to do 18 with a completely different subject that is no way connected l 19 to the ultimate use to which the interview was put in the 20 proceeding. 4 21 JUDGE SMITH: As if it were a separate document? 22 MR. TRAFICONTE:- As if it were a separate 23 document. But unfortunately it is not. 24 The Magnan and Paolillo,,'on the other hand, was l-L 25 one questionnaire fairly clearly defined. The answers were Heritage Reporting Corporation (202) 628-4888 1 I __-___ a
I 18377 1 jotted down. Then we have a hearsay-witness that will 2' repeat those representations. They:want the supporting 3 documentation and we have given it to them. 44 Here they're casting their net after a set of 1 5 documents that has a lot more in it. 6 JUDGE SMITH: I don't'know, it seems like -- A
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7 MR. DIGNAN: I haven't cast a net.
] ,
8 JUDGE SMITH: There is not a meeting of minds here' i 9 yet. 10 MR. DIGNAN: But I'm beginning to think of doing 11 it now that I have heard this description. I guess what I. 1 12 want is for them to redact a set, give11t'to me'and give an
]
13 unredacted set to this Board for.its decision as to whether ( ) 14 the redactions were proper. That's where I.am right now. 15 I don't understand this. The testimony of both of 16 these witnesses says they went out and did afcertain type.of 17 investigation.- If I recall itEcorrectly it doesn't say they. 18 did three or-four different kinds of investigation. l 19 And it seems to me anything they, asked when they 20 were out there is fair game for cross-examination as to 21 whether this testimony is appropriate. l 22 MR. TRAFICONTE: Oh, I would challenge that. That 23 just can't be right.. Anything that they would ask, if it's (- 24 not anywhere connected to what their hearsay representations 25 are is. relevant? That I don't follow at all. l Heritage Reporting Corporation (202) 628-4888 1 1
18378 g 1 MR. DIGNAN: I'm certainly interested in whether 2 extra questions were asked to glean a certain answer 3 desirable to the Attorney General's Office. 4 As you know, Mr. Traficonte, there is a lot of 5 shadings of meaning when people answer questions. And a lot 6 depends on what the follow-up question is as to what you can 7 then put in the hearsay piece. 8 So given the explanation I'm perfectly prepared to 1 9 take the redacted stuff for openers, Your Honor. But I 10 think an unredacted set of these notes should be furnished 11 to the Board and let the Board decide whether or not it's 12 relevant to the cross-examination. 13 I'm perfectly prepared to leave it in the hands of 14 the Board. 15 JUDGE SMITH: What information do we have or 16 should we have or do we need to determine whether the whole 17 document is tainted by the -- not tainted but colored by the 18 part that relates directly to the hearsay testimony? 19 We don't know, we're still talking in some vague 20 abstract. They set out to conduct an interview to gain 21 certain information which apparently has some broad 22 relevance to their testimony. 23 But now you want to subdivide that broad relevance 24 into the part that survived into the testimony directly 25 relevant to the hearsay statements and eliminate that aspect 1 0 Heritage Reporting. Corporation (202) 628-4888 1 1
18379 1~ which did not survive. Is that pretty much it?
)
2 MR. TRAFICONTE: That isn't reflected in the 3 hearsay testimony. 4 JUDGE SMITH: That is not reflected or not -- 5 MR. TRAFICONTE: Connected to. 6 JUDGE SMITH: Not connected to it. 7 MR. TRAFICONTE: Yes. 8 JUDGE SMITH: Not connected to it. Now that's 9 important. j 10 MR. TRAFICONTE: Not connected to. 11 JUDGE SMITH: Not connected to. 12 MR. TRAFICONTE: The parallel-would be in an 13 automobile case, for example, if a plaintiff or a defendant () 14 hires an investigator who goes out and does a wide ranging 15 investigation across a whole series of issues and discovers 16 information that is relevant and material. And discovers 17 other information that either he or the lawyers decide is 18 not relevant or material. 19 And the investigator is on the stand, assuming 20 there would be an enforceable hearsay rule, the investigator 21 in on the stand and he is giving. answers to direct 22 questions. The question is, wouldn't the written 23 documentary record be protectable as work product, in the 24 first instance? 25 Perhaps portions of it might be successfully Eeritage Reporting Corporation (202) 628-4888
y I). 18380
/ 1 gotten in discovery. But I haven't-heard any argument that D} '2. would entail'a full dressed disclosure in turning over of 3 all the work product types of documents generated by a.
4 plaintiff or defendant during litigation. 5 I grant you a portion of that work product might 6 .end up in the form of testimony. And if it's hearsay I 7 think they make a colorable argument ~that, well, perhaps if 8 -- unless you're going'to draw a negative inference about 9 the hearsay, perhaps they should have an opportunity to see 10 the written notes.- 11 But that doesn't mean that everything, all the 12 work product documents and all the work of the investigator 13 across the board immediately gets discovered. That doesn't () 14 make any sense. . 15 JUDGE SMITH: I don't see how the Board can 1 l 16 possibly decide which of the two of you are correct in the . ;. 17 abstract discussion that we are receiving this afternoon. 18 MR. DIGNAN: I'm proposing a procedure which is 19 that I be furnished the redacted materials and that a set of ( 20 unredacted be given to the Board. 21 It may well be that when the Board looks at it the 22 Board will still be in the quandary and they will say, Mr. l 23 Dignan, we can't tell from this whether or not it would be 24 properly something or not. And if that's so, it's so. 1 s 25 I'm perfectly prepared to' accept the judgment of Heritage Reporting Corporation (202) 628-4888 t
18381 1 the Board. But since the witnesses themselves in their 2 prefiled direct, which I wanted to get in front of me before 3 I made any representations, make no indication that they did 4 anything but the survey they're testifying to, I have a 5 feeling everything and anything they asked, said or wrote 6 down is relevant to the cross-examination of these 7 witnesses.
- 8 The witnesses don't indicate that they were on a
, 9 double track doing this survey plus something else. They 10 indicate that they did a survey. j 11 I'll be perfectly candid with the Board, I'm 12 operating with a trial lawyer's instinct right now, when 13 somebody fights that hard to keep something away from me my 14 instincts tell me I want to see it.
15 MR. TRAFICONTE: How hard am I fighting? I'm 16 making an argument. I think the scope of his request is 17 just simply too broad. 18 JUDGE SMITH: How do we know? They set out an 19 interview. It was interviewed on for the purpose of 20 preparing testimony that was presented in this case. 21 MR. TRAFICONTE: Yes. 22 JUDGE SMITH: And you decided not to use. 23 MR. TRAFICONTE: Yes. 24 JUDGE SMITH: If he didn't push hard for that 25 information I think his clients ought to complain. It's 9 Heritage Reporting Corporation (202) 628-4888 l 1
i 18382
/\ 1 just exactly where you would want to look for information b 2 useful on cross-examination, I' don't know.
3 But if you are representing a situation not too 4 common in my experience which there is in the same document 5 information irrelevant and relevant to the hearsay 6 testimony. That's your representation. 7 As unlikely as it seems to me to be the case in 8 the background I. don't know what to do. Just accept your 9 word for it, although it seems unlikely to me. 10 Do you want that? Do you really want that? Do 11 you want us to accept your word for an improbable situation? 12 MR. TRAFICONTE: That's a loaded question. 13 JUDGE SMITH: Yes, it .is. But you yourself say 14 here --
.i 15 MR. TRAFICONTE: Yes. I 16 JUDGE SMITH: They start an interview to prepare-17 testimony. Now some of it you don't want anybody to see.
18 It may very well be that your representation is correct. j 19 But you see, I don't want to lecture to you l 20 because you're an experienced trial person. But it is not 21 right to ask your adversary to take your word for things. 22 It's not a question of, I don't trust you. But l 23 careful lawyers don't put things on that basis. That clears 24 the air of suspicion and mistrust. Not only that but later 25 on of interpretation on your part. l n ksj) Heritage Reporting Corporation . (202) 628-4888 ' l l .
i l l 18383 i [\m/} 1 To ask for a thorough look at the withheld l l 2 information is not in any way a pejorative thing. It is j 3 just normal. 4 MR. TRAFICONTE: Then I think the Board -- I don't 5 disagree with the notion that it's not appropriate that 6 everyone take my word for it. The Board should review the 7 material. 8 JUDGE SMITH: Unredacted? 9 MR. TRAFICONTE: Pardon me? 10 JUDGE SMITH: The unredacted? 11 MR. TRAFICONTE: Yes. 12 JUDGE SMITH: Well, if you're willing to do that 13 then we don't havc a problem. () 14 MR. TRAFICONTE: Well, I had not resisted that. 15 JUDGE SMITH: That's what the whole argument was. 16 MR. TRAFICONTE: I have resisted his motion to 17 compel us to produce it to them. But in the interim if the 18 Board -- 19 JUDGE SMITH: No. He had early on had agreed to l 20 that approach. Yes. 21 MR. TRAFICONTE: Fine. l 22 JUDGE SMITH: So we will have a copy showing which 23 part has been redacted. 24 MR. TRAFICONTE: Yes. 25 JUDGE SMITH: I think that's --
/'l
(~ l Heritage Reporting Corporation (202) 628-4888 I l__. _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ ___ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ _ __ .____________________m-
y-18384
/) %J 1 MR. DIGNAN: That's perfectly acceptable to me.
2 JUDGE SMITH: I thought that he had agreed to that 3 early on. 4 MR. TRAFICONTE:- Maybe I missed something. I 5 thought he was pushing for the continued production. 6 JUDGE SMITH: I wish they were all so easy to 7 resolve as this one. 8 All right. Do you want to go to work? I 9 MR. TRAFICONTE: Your Honor, in_ terms of schedule 10 just to alert the parties. I am very much hoping to be able I o 11 to finish Mr. Donovan by the_close of. business tomorrow. I l 12 think that's a possibility. And if it isn't done by.the 13 close of business tomorrow, I cannot imagine that I could i ) 14 not be done by the lunch break on Wednesday. That is a real 15 ambition of mine. I l 16 But Ms. Doughty has a portion of cross as wall, 17 connected to the issues that I am not cross-examining Mr. l I I 18 Donovan on. I 19 JUDGE SMITH: Of course, Ms. Doughty, you're under 1 l 20 an obligation to try to work your cross-examination out l 21 through Mr. Traficonte, if that can be done. 22 MS. DOUGHTY: He's doing a lot of issues that we 23 are both litigating, but I'm doing the issue that the Mass 24 Attorney General is not litigating. 25 JUDGE SMITH: Did you want to follow up on your Heritage Reporting Corporation (202) 628-4888
v. I DONOVAN - CROSS 18385 i 1 Exhibit 617 [] L' 1 2 MR. TRAFICONTE: Yes. That's exactly where I , 1 3 would like to pick up. l 4 CROSS-EXAMINATION (CONTINUED) j 5 BY MR. TRAFICONTE: 6 Q 'Mr. Donovan, do you have Mass Exhibit 61 available 7 to you? It being the submission by FEMA to the NRC, the f A 8 comments on the March 1987 proposed rule? i 1 9 A (Donovan) I left it in my room, so I don't have 10 it in front of me. , 11 Q Can you give me one minute and I'll find you 12 another copy. 13 (Document preffered to witness.) ()
;<m 14 THE WITNESS: (Donovan) Thank you, i
15 MR. TRAFICONTE: Thank you. l 16 Your Honors, over the weekend I did review this 17 document with regard to the discussion we had Friddy morning 18 and there is only -- I reviewed the particular part with 19 regard to Mr,. Dignan's point that to the extent that there 20 is material here that is properly characterized as the 21 factual input, if you will, by FEMA into a " utility only" 22 plan criteria or rule that it for the most part deals with 23 the exercise. 24 And I think Mr. Dignan said, therefore more 25 properly dealt with at a later time. I reviewed the 1 [~ (_)) Heritage Reporting Corporation (202) 628-4888 l l 1 w__-___-_______
DONOVAN 1 CROSS ~ 18386 document with that in mind and Il agree in major part. But
] 'l 2' there is a portion of it that deals not with exercising a 1
3 " utility onlyd plan, but simply forming a judgment whether a 4 " utility:only" plan as.a planning document could be i 1 5 adequate. 6 JUDGE SMITH: As a planning, can what? I e .. 7 MR. TRAFICONTE: There's a portiori of FEMA's l 8 comments here that deal with whether or not'a'" utility only" 9 plan can be found adequate. I 10 JUDGE SMITH: Yes. H 11 MR. TRAFICONTE: Not connected to difficulties.in g l 12 exercising without state and local participation but just ] 13 simply as a planning vehicle in the absence of state and ( 14 local participation. 15 So I would like to pursue.that at this juncture 16 that limited'use o- his document.right now. . , 17 JUDGE SMITH' Well that's where I thought you lost ! i' 18 last Friday. l 19 MR. TRAFICONTE: I didn't.think we did lose. I ; 20 thought the Board had ruled that.to the extent that the 21 docament has factual material in it. 22 JUDGE SMITH: Factual statements as to their 23 9xperience.
. 24 MR. TRAFICONTE: Yes.
i 25 JUDGE SMITH: And difficulties with a "t.tility Beritage Reporting Corporation (202) 628-4888 ; 4 _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ _ . - _ _ _ _ _ _ m
v DONOVAN - CROSS 18387 [ 1. .only"' plan. 2 MR. TRAFICONTE: Yes. 3 JUDGE SMITH: You would be allowed to cross-4 examine on. ; 5 MR. TRAFICONTE: Precisely what I.. intend to do. ] 6 And I will direct the Board to.that. portion. There's only 7 one portion'at this-juncture that I would like to pursue my 8 ? cross-examination. -{ l 9 . JUDGE SMITH: Okay. 10 BY MR. TRAFICONTE: 11 Q Mr. Donovan, could you turn to page three of g 12 Exhibit 617 And in the full paragraph at the bottom, Mr. 13 ' Donovan, I would like to direct your attention.to the third () 14 sentence that begins: "The proposed rule incorporates." 15 Do you see that? 16 A (Donovan) Yes. 17 Q Let me just continue reading it: "The proposed 18 rule incorporates as a basic premise the assumption that 19 state and local governments are likely to respond in an j l 20 actual emergency because state law requires them to do so, i 21 and also because that would presumably be the natural 22 reaction of government officials in time of emergency. Even 23 if the premise is valid the ad hoc nature of their response. 24 could have unfortunate consequences. 25 It does not assure that the full range of O- Heritage Reporting Corporation ' (202) 628-4888
- 1
.I DONOVAN - CROSS ~18388 1 1 necessary actions will be taken."
2' How, do you agree with that statement, 1t:. 3 Donovan? 4 MR. DIGNAN: Objection. This cross is challenging 5 the Commission's adoption of the realism rules. It's just 6 that simple.
- 7. .MR. TRAFICONTE: It is not, Your Honor. I think I-8 have identified a clear statement of factual input, if you 9 will, based on FEMA's expertise in the emergency planning 10 area. And I should be. permitted to cross on just this 11 point.
12 MR. FLYNN: I join in the objection that the 13 statement referred to is not clearly factual. It offers 14 opinion. 15 MR. TRAFICONTE: Well, I don't dispute that it 16' offers opinion. That isn't relevant. It's clearly opinion l 1 17 of FEMA as to emergency planning. 18 JUDGE SMITH: Well, it expre.ses the conclusion, 19 albeit a factual conclusion that the' proposed rule was 20 fundamentally flawed.and that it could never be as good as 21 one with the state and local government responses. 22 His opinion, if that is the case, is really 23 irrelevant, if that is the case in such a general way. 24' MR. TRAFICONTE: Your Honor, the Commission's new 25 rule does not mandate that a." utility only" plan must be Heritage Reporting Corporation (202) 628-4888 J
l DONOVAN - CROSS 18389 l
/T 'l found adequate. Nor does it mandate - -. .] %sf l 2 JUDGE SMITH: .No. That's correct.
3 MR. TRAFICONTE: -Nor does it mandate that FEMA had l l 4~ to come back into this proceeding after reviewing the 5 utility plan and make a reasonable assurance finding. j 6 In fact I have reviewed'again -- ! 7 ' JUDGE SMITH: Well, it doesn't' mandate that. But
'8 it mandates that they not withhold a reasonable. assurance l
9 finding based upon the language that you are att'empting to 10 cross-examine on. 11 MR. .TRAFICONTE: That's correct,.Your: Honor. I g 12 couldn't agree.with you more.. The purpose of my cross-13 examination -- I'll just' lay my cards on the table. () 14 What I am pressing on is I want to know in what' 15 fashion FEMA resolved its own problems, it's'own expressed 16 concerns with " utility only" planning. ! 17 JUDGE SMITH: In how they -- l 18 MR. TRAFICONTE: How did they resolve it such that
~
19 they are now able to come-in and testify that they went out, 20 they reviewed the " utility only" plan as the new rule would 21 mandate that they do. And they are back in here: with a 22 reasonable assurance finding, notwithstanding their own 23 representations based cn1 their expertise as to the 24 difficulties with such planning. 25 I should be permitted to inquire as to how they Heritage Reporting Corporation-(202) 628-4888
DONOVAN - CROSS 18390 (T 1 have been able to do that.
\m ,/ !
2 MR. FLYNN: Well, we're back to where we were on 3 Friday. The answer is, the rule was adopted. There is 4 nothing -- we haven't gotten past the point that the Board 5 raised and that is, what is there of a strictly factual 6 nature that is presented in this letter which makes the L 7 opinion irrelevant. 8 MR. TRAFICONTE: The answer -- I'm sorry, Mr. l l 9 Flynn. 10 MR. FLYNN: Go ahead. 11 MR. TRAFICONTE: The answer is that what we have 12 is a judgment by FEMA that in the absence of state and local 13 participation the response may well be uncoordinated. tN 14 () Now I assume.and in fact I represent I'm certain j 15 that Mr. Donovan does not believe that the SPMC, that the 16 response that would be pursuant to the SPMC is going to be l 17 totally uncoordinated. 18 So in some fashion FEMA believes that the SPMC at , l 19 least has resolved this particular problem. And I would
]
i 20 like to explore with him on what basis FEMA has formed the l 21 judgment that the identified problem that FEMA recognized 22 might likely exist is not a problem for this utility plan. 23 24 25 Heritage Reporting Corporation (202) 628-4888
l l DONOVAN - CROSS 18391 l [ 1 MR. TRAFICONTE: (Continued) Just one more point 2 about Mr. Flynn's last argument. He seems to believe that 1 3 the fact that the rule was adopted resolves these types of 4 factual concerns that FEMA expressed. But again, the rule 5 as adopted did not mandate that utility-only planning had to 6 be found adequate. That's an open question. t j 7 FEMA has gone back, reviewed it and found it 8 adequate. And I would like to press FEMA on how did this 9 plan solve the problems that FEMA recognized to the extent 10 that FEMA has now been able to come in with e reasonable i 11 assurance finding. 12 MR. FLYNN: I think it's perfectly obvious that 13 what we are getting into is an argument about how the rule ! () 14 as adopted by the NRC should be applied. We are not going 15 to present, we're not going to represent to this Board that 16 we discovered some new facilities of coordination-in the l 17 Commonwealth of Massachusetts that weren't there before. 18 It's perfectly obviously from the history of the ; 19 rule what has happened. What happened was the rule made ; l 20 certain assumptions which are also incorporated in and ' 21 elaborated on somewhat in the guidance, NUREG-0654, Supp. 1. 22 MS. CHAN: Your Honor, perhaps we can shortcut 23 some of this. It seems that this is a FEMA policy opinion 24 made by Mr. McLoughlin. And I don't know that we have the 25 right person to be asking what he meant in his letter. \_)' Heritage Reporting Corporation (202) 628-4888
v DONOVAN - CROSS 18392
/ 1 JUDGE SMITH: He's all we' ve got .
D] ~
-2 mss CHAN: _Well. )
3' JUDGE SMITH: Mr. McLoughlin isn't here.
;4 .MS. CHAN: And in addition,.according to my notes i l \
5 Mr. Donovan did not begin working on this issue until ( l 6 January 1988, and the memo is dated April 1987. 7 MR. TRAFICONTE: As to the last point, Your Honor, j 8 .just to dispense with that, if Mr. Donovan is not even l 9 familiar with what FEMA's expressed concerns were concerning 10 the utility-only planning, it runs to the weight of his 11 review, number one. ; 12 ' Number'two, Mr. McLoughlin is not on the stand, 13 that's true, but this is a -- I don't know exactly what that ]
.14 . runs to, whether it's the authentication problem or what.
15 But these are official comments'on the agency submitted.to l 16 the NRC. And unless I hear an objection in this regard, I l 17 think we are probably -- it's probably reasonable to assume-18 that this was the position FEMA took at the time. 19 This isn't just Mr. McLoughlin talking. This is 20 McLoughlin talking on behalf of the FEMA since its FEMA's 21- comments on the proposed rule. 22 So either way, I don't see how I've got the -- I 23 may not have the best witness, but I've certainly got a 24 fairly good one to pursue this with. 25 MR. FLYNN: The objection doesn't go to Mr. Heritage Reporting Corporation , (202) 628-4888 1 l
)
DONOVAN - CROSS 18393 1 Donovan's competence to answer the questions. The objection 2 goes to the nature of the information that is going to be 3 elicited by the questions. 4 The answer can be only one of two things. It can 5 be either that the rule took care of the problem, or this is 6 how FEMA interprets the rule with the concurrence of NRC, or 7 Mr. Traficonte is saying he wants to explore. Well, we 8 found things in the plan that we didn't es.pect,: and 9 therefore we're satisfied.
~
10 And I will represent to you right now that the 11 question of how coordinated the response of the Commonwealth 12 of Massachusetts will be, or how coordinated the response of 13 the Town of Newbury and so on will be is not addressed in 14 the plen. We don't need to ask Mr. Donovan that. We know 15 already how the answers are likely to go. 16 MR. TRAFICONTE: Your Honor, this is a 17 tremendously important point here in terms of the review of 18 this plan. If Mr. Flynn would stipulate to what he just 19 said, I believe FEMA, therefore, has no position on the 20 adequacy of this plan in anything other than what is called 21 inside the plan, Mode 2 full. That is to say, Mr. Donovan 22 may be prepared to defend his, or his agency's reasonable 23 assurance finding assuming that a full delegation of 24 authority is legal and would take place. 25 Absent or outside of that set of assumpti.ons, FEMA I Heritage Reporting Corporation (202) 628-4888 ' i l
i i i DONOVAN - CROSS 18394 l I has taken no position on the adequacy of the planning 2 document, or its implementation. That's what I just heard. j i 3 And if he'll stipulate to that, we probably can move l 4 forward. 1 5 MR. FLYNN: No, I won't stipulate to that. That 6 is another question and we -- I 7 MR. TRAFICONTE: I thought you just represented j i l 8 it. ) l J 9 MR. DIGNAN: Your Honor, since it was my 10 objection -- 11 MR. FLYNN: You've raised a different issue. 12 MR. DIGNAN: Since it's my objection and it's on 13 the floor, may be I be heard briefly? () 14 JUDGE SMITH: Mr. Dignan. 15 MR. DIGNAN: Thank you. 16 Your Honor, my main problem is that this cross- 1 l 17 examination would be perfectly relevant had there been an 1 18 adjudicatory proceeding surrounding the rulemaking itself. 1 19 Whatever difficulties FEMA thought it would have with that 20 rule it put before the Nuclear Regulatory Commission, and 21 the Nuclear Regulatory Commission, by adopting the rule, l 22 ruled as a matter of law that those difficulties were simply l 23 not something that the Commission was going to -- 24 JUDGE SMITH: Not necessarily true, Mr. Dignan. 25 MR. DIGNAN: All right. Heritage Reporting Corporation (202) 628-4888
~r--
l l l DONOVAN - CROSS 18395 i
.l 1 JUDGE SMITH: The NRC said that they recognize l
{v'} 2 from the various comments and the adjudicatory record of j l 3 Shoreham that a utility-only plan likely would not be as l I 4 good as a plan with the state and local response. l l 5 MR. DIGNAN: Everybody agrees with that. 6 JUDGE SMITH: Right. 7 MR. DIGNAN: Including the Applicant. 8 JUDG3 SMITH: So they recognize that there is a l 1 9 down side to the utility plan. i 10 And then they go on to say, in that event, if it's l 11 the utility-only plan, we can go ahead and examine on i 12 whether compensatory actions may nevertheless be taken which 13 would render the plan nevertheless adequate. We won't () 14 15 compare it with a plan with full state and local participation. Now that's where the subtleties begin and 1 ; l 16 the fine point begins to get in. We're not allowed to l 17 compare this plan with a theoretical plan with state and 18 local participation. We are prescribed by the statements of 19 consi.: tttion 7eom that, and that's what he would like to 20 do. 21 On the other hand, we do have to look at the 22 adequacy of compensatory measures, whatever standard goes 23 there to be judged by. There is some relevance to the fact 1 24 that FEMA was concerned that the ad hoc nature of the 25 response, of the state and local response, that their A) (,, Heritage Reporting Corporation (202) 628-4888
y ____ DONOVAN - CROSS 18396 (T 1 response would be ad hoc. I think that it is relevant V 2 solely to the issue of adequacy of compensatory measures. 3 Now, if we can cut it that fine, I don't know.- 4 MR. DIGNAN: Well, I'm not'sure I. disagree with 5 -anything Your Honor said. 6 My problem is this. The Commission clearly, when 7 it adopted the rule, acknowledge'd the fact, as this
'l I
8 Applicant acknowledges and as the Board has acknowledged, 9 that everybody agrees the cooperation of the Commonwealth of 10 Massachusetts in this particular case would produce a better 11 plan. No one questions that and the Commission didn't. 12' But by adopting the rule, the Commission ' l 13 presumably took into account comments like this from its () 14 sister federal agency, and it wasn't challenging that agency 15 now to demonstrate that they could overcome their concern. 16 They indeed said your concern is valid. But we will okay a 17 utility plan even with that understanding because, and they 18 threw in the realism rule in behind it saying we.know that 19 in an actual emergency we will not only have the utility 20 plan, but we the Commission are deciding that the state and 21 local people will respond as they have. And.they.went' 22 further and said, and we're going to assume since this is 23 the only plan around and everybody who appeared before us 24 said that a planned response is-better than an unplanned 25 response, they will follow the utility plan. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18397-
This was the Commission's solution, .if you will, 1
(d' 2 to the concerns expressed by FEMA. It was not to challenge 3 FEMA and say to FEMA, do it anyway. It was, rather, we 4 understand your problem, and the solution to it lies in the 5 fact that we will -- the utility put out a plan that will be 6 reviewed and so forth and so on. But:we're going to assume 7 more than that, which is, -(a) that the state will respond in l 8 fact; and (b) that it will' follow the utility plan. 9 So what we're really doing by this cross-J 10' examination is challenging those presumptions adopted by the ] 11 Commission. Because to get this witness to start saying 12 whether or not he agrees with that statement, and then go 13 into detail as to whether or not it has been overcome it,. I i i (~% () 14 respectfully suggest, challenging the basic rule that the 15 Commission has passed upon. 16 Now I perhaps overargued my point, but that's as 17 best I can articulate it, in any event. 18 JUDGE SMITH: We seem'to be going around again on 19 it. 20 MR. TRAFICONTE: I would just like to make one 21 further point. And I also don't want to over-argue this, 22 although I want to emphasize it. .I think it's an important 23 point, and an important objection to what I consider to be a
'24 fair line of cross. I would just want to pick up one 25 further point from Mr. Dignan's last comments.
(~% (,,) Heritage Reporting Corporation
, (202) 628-4888 L__ _ _ ___ _ _ _ . - - _ _ _ .
_ i DONOVAN - CROSS 18397 0, 1 This was the Commission's solution, if you will, to the concerns' expressed by FEMA. It was not to challenge 2
.3 FEMA and say to FEMA, do it anyway. It'was, rather, 'e w 4 understand your problem, and_the' solution to it lies in the 5- fact that we will -- the utility put out a plan that will be 6- reviewed and so forth and so on. But; we' re ' going sto assume 7 more than that, which is, (a) that the state will respond in 8 fact; and '(b) that it will: follow the utility-plan. .j d
9 So what we're really doing by this cross-10 examination is challenging those presumptions adopted by the- }) 11 Commission. Because to.get this witness to start saying l 12 whether or not he agrees with-that statement, and then go. 13 into detail as to whether or'not it has been. overcome is, I () 14 respectfully suggest, challenging the basic rule thatLthe 15 Commission has passed upon. 16 Now I perhaps overargued my point,-but that's as 17 best I can articulate-it, in any event. 18 JUDGE SMITH: ewe seem to be going around again on 19 'it. 20 MR. TRAFICONTE: I would just like to make one 1 I 21 further point. And I also don't want to over-argue this, ,j 22 although I want to emphasize it. I think it's an important 23 point, and an-important objection to what I consider to be a-24 fair line of cross. I would just want to pick up one j 25 further point from Mr. Dignan's last comments, i seritage Reporting corporation
, (202) 628-4888 L
i . 4 -; ,. b_
i
)
DONOVAN - CROSS 18398 1 , Again, I believe there appears to be a very 2 _ careful forgetting of this Board's July 1988 ruling. In
- 3. 'that memorandum, which is the law of this case,-the Board 4 made very clear that a utility plan does not come into the.
5 proceeding clothed with the presumption that the governments 1 6 will' follow it. It has to earn that. presumption by being 7- ~ established first as an adequate plan. 8 And_I'm sure the Board and Your Honor will recall' 9- that there is language throughout the discussion in the 10 early portion of the opinion.in July concerning the 11 Applicants' case-in-chief, and what is rebuttal'and what is l 1 12 not rebuttal, and what contentions challenge the Applicants' l 13 case-in-chief, et cetera. ( 14 If I hear Mr. Dignan_ correctly, and.if I hear Mr. 15 Flynn correctly, FEMA -- and again, the other building 1 block 16 in my argument is that Mr. Dignan is relying on FEMA-for his 17 prime facie showing that the plan is adequate. That's 18 clear. And yet, if I heard Mr. Dignan properly and Mr. 19 Flynn properly, FEMA itself made the assumption that the 20 governments would follow the utility plan as part of, or 21 let's call it the initial predicate for its review. And 22 that is just fundamentally circular,'I think fatally 23 _ circular way in which the new rule is being.used to
-i' 24 circumvent the law of the case according to the way at least 25 I interpret the July memorandum, which I have reread on this.
Heritage Reporting Corporation (202) 628-4888 ,
L x , i DONOVAN - CROSS 18399 l 1 1 very point very recently.
% ,/
If I've understood the flow, then FEMA's review 2 3 can't-be and shouldn't be permitted to make out the prime , 4 facie case, because they've assumed the further presumption 5' that we'll follow lthe plan before they.have set off on their
.i I
6 review of the plan to determine whether it's adequate. 7 JUDGE SMITH: Well, again, Mr. Traficonte,.you .i 8 have accurately picked up some of.the statements that the q 9 Board made about earning the presumption. But you have also' l 10 'again taken.it much farther than the Board intended or-11 authorizes in this case. 12 We simply set up the framework in which you could 13 offer and prove contentions which attacked the basic 1 14 rationale of the plan, and that's all we were doing there. 15 We could not just simply accept the Staff's and Licensee's' 16 ill-considered arguments that no matter what a plan is, it ,
. ~l 17 will be followed without some threshold showing that it can j 18 be followed. It's just that simple. It shouldn't'be made 19 more than it is. 'j 1
20 Now, if FEMA has arrived at a conclusion that a 'i i 21 government participation produces a better plan than one : 1 22 without, that conclusion.is irrelevant. But if' FEMA i 23 believes that they are aware through th<ir expertise and 24 their experience of particular aspects o,f government 25 Nonparticipation that they are familiar wit.h through their Heritage Reporting Corporation i (202) 628-4888 L
~r-1 i
DONOVAN - CROSS 18400 [~% 1. experience as to which compensatory measures may be taken, I
'\ , i 2 but those compensatory measures may have to be something 1 3 more or less than others, it is that very, very narrow area )
l 4 that you should be allowed to inquire of. ] 1 5 And that is, is the utility plan, given the ] 6 nonparticipation of the state and local government,' as good 7 as it can be. Has it taken the compensatory measures which 8 FEMA believes are appropriate to be taken accepting full -- 9 this is FEMA -- accepting full as they must the NRC's 10 judgment that the plan does not have to be as good as a ; 11 state and local plan, but that the compensatory measures are . 1 1 12 a factor which we will look at and must look at to see if 1 l 13 the 16 planning standards under 50.47 (b) are met and whether , (~'\ 14 the overall aspiration of adequacy is satisfied. It's l t, j j 15 within that very narrow factual inquiry that you should be l l 16 allowed to cross-examine. 1 i 17 MR. TRAFICONTE: So the objection is overruled? 18 JUDGE SMITH: Well, I don't know. Your cross-19 examination will be limited to that. I mean, if you don't 20 understand my ruling, and it may be difficult to follow l 21 because it is abstract, but I guess you can inquire with l l l l l 22 that limited purpose. l 23 MR. TRAFICONTE: What I intend to do is put the 24 same question again and see what happens to his objection.- 25 I follow the Board's ruling, I believe. O ( ,) Heritage Reporting Corporation (202) 628-4888
'q 1
DONOVAN - CROSS 18401 ! 1 BY MR. TRAFICONTE: 2 Q Mr. Donovan, again as with' regard to page 3 of 3- Mass Exhibit: 61, the langauge that we were just examining 4 and I'll just read a portion of it at the bottom of page 3. 5 You will find there the sentence is, "Even if the premise is 6 valid, the ad hoc nature of their response could have 7 unfortunate consequences.- It does not assure that the full i l 8 range of necessary actions will be taken." ' 9- Mr. Donovan, is there some way in which-the SPMC, 10 as far as you know, has design compensatory measures that 11 are sufficient to have resolved this FEMA concern? 12 MR. DIGNAN: Objection. First of all, this is a . 13 different objection than to the other one. But now he's put () l 14 it on the plan. The plan doesn't have to resolve FEMA's 15 generic concerns. There's no requirement that it do so. 16 That is in addition. And the result of the argument I would 17 make is precisely the one I've made. I don't want to take 18 your time up. It's nothing different other than that-19 additional point that now he's put it in the plan. There is l 20 no reg guide or anything else that I'm aware of that says 21 the plan has to solve the generic concerns that FEMA put in 22 this letter, and that's the way the question has been given 23 to the witness in the present form. 24 MR. TRAFICONTE: Your Honor, I get this sneaking 25 suspicion that Mr. Dignan'is doing a little bit more than
) Heritage Reporting Corporation (202) 628-4888
_ . _ _ . . _ _ _ _ . . _ _ . __ _ _ _ --._.___._.__.______u-m-.__-__.__m-
DONOVAN.- CROSS 18402 - l' arguing objections as much as he's trying to1 obstruct the: , 2 cross. 3 We'just had a-fairly lengthy argument on the-4 point. I interpreted the' Board as.:having ruled, and.I 5- thought I' was going to be permitted to put the. question.' ,
'6 JUDGE SMITH: First, let'sLstop'the artificial' l 7 approach of using this lett'er as to which.he was not a party.
8 -- I don't know if he knows.what it means or what -- as the 9 basis for your. cross-examination.. 10 .Ask him your.own-questions directly. Don't-use :l 11 the letter to do it. 12 You have an area in.which you are allowed to 13 cross-examine. Don't force these words into the--- these 14 words standing as they are alone. don't-mean anything_to.us. 15 You 'didn't even- ask him if he agrees with theus or what: they. 16 mean or anything else. You assumed the premise of that , 17 letter. 18 MR. TRAFICONTE: Because they are official FEMA-19 policy, yes. They are official FEMA'-- 20 JUDGE SMITH: Well, you didn't win that much. . You 21 only won the right to' cross-examine on the--issue that if -- 22 first, you showed that there.was an area that FEMA'had 23 concern;-that FEMA did-have concern about theLad hoc nature u ' 24 of the government response. 25 Never mind.the language of the letter now. That Heritage Reporting ' Corporation (202) 628-4888
-l n 1
I i DONOVAN - CROSS 18403
/~' 1 is not going to.give you anything upon which.you can make a b) 3
~
2 proposed finding. But you can take the premise of the
~3 letter that'there were areas, and then try to redefine it. ;
4 MR. TRAFICONTE: Let me try that tack. 1 5 BY MR. TRAFICONTE: ' 6 Q Mr. Donovan, it's a fact, is it not, that at a -l 7 certain point FEMA was concerned that in the absence of i 8 state and local governmental participation that there may 9 not be, or that a full range of necessary actions would not 10 be taken in the event of an emergency? 11 That's a fact, is it not? 12 A (Donovan) For what time? , 13 Q At what point? () 14 15 At some point in the past FEMA has expressed that l concern? 16 A (Donovan) I believe they did. 17 Q And it's also a fact, is it not, that they l 18 expressed that concern to the NRC? j 19 A (Donovan) I believe they did. 20 Q And FEMA understood that the concern had to do 21 with utility planning in those circumstances where state and 22 local governments were not participating. 23 That's a fact, is it not? 24 A (Donovan) I believe so. 25 Q Do you agree with that? Do you agree that there l f ( Heritage Reporting Corporation i l (202) 628-4888 1
= 1
l DONOVAN - CROSS 18404 I l (~h 1 may well be concerns concerning the full range of necessary I
\~) l 2 actions being taken in the event, or in the absence of state I i
3 and local participation? { 1 4 MR. DIGNAN: I object. 1 1 5 < MR. TRAFICONTE: Well, that's just asking him 6 whether he agrees with it. 7 JUDGE SMITH: Overruled. . a 8 THE WITNESS: (Donovan) I don't'believe the f l 9 agency has thoso concerns today. 10 BY MR. TRAFICONTE: l 11 Q Good. Can you enlighten us as to what has ! l 12 resolved the agency's concerns in that regard? ! 13 A (Donovan) I was with the director of the agency () 14 when we testified in front of the Senate on the subject 15 matter covered by this letter and by the gentleman's 16 questions. And when we testified in front of the Senate, 17 NRC also appeared with us. And we expressed that the 18 agency's main reservations were at that time that there was ! 19 a lack of a document that the agency, FEMA could use to 20 review utility prepared offsite plans. ]
]
21 Since that time we have such a document. Mr. i l 22 Flynn and other parties were calling it NUREG-0654, Supp. 1. l 23 That gives us a basis to address the nature of the 1 l 24 compensatory plans and preparedness prepared by the utility 1 25 for offsite preparedness. And we believe this document Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18405 () U 1 represents the considered opinion of both agencies of what 2 an appropriate response plan should cover in terms of 3- appropriate protective actions for the public. I 4 Q Is it a fair statement, Mr. Donovan, that it's 5 _your testimony that the concerns, at least the one I've just 6 mentioned, that FEMA's concerns about utility-only planning 7 in the absence of state and local government were resolved l 8 in some fashion with the creation and promulgation of j I 9 Supplement No. 1 to NUREG-06547 j i 10 Is that a fair statement? 11 A (Donovan) Well, I'll stand by my-statement rather 1 12 than your version of. 13 Q Well, is there a problem with my version? ) /~hj t 14 A (Donovan) Well, I would prefer to have my words
)
15 be my statement. 16 Q Are you able to identify a. portion of my characterizati;n that's not correct? l 17 18 JUDGE SMITH: Would you like to point out how your 19 version differs from his? l 20 MR. TRAFICONTE: All right, fine, fine. 21 JUDGE SMITH: Let him focus in on that. 22 MR. TRAFICONTE: All right. 23 BY MR. TRAFICONTE:
- 24. Q Let me ask you some questions then about the 25 creation of Supplement in. 1.
C' Heritage Reporting Corporation (202) 628-4888
l DONOVAN - CROSS 18406 [N 1 You are one of its authors, are you not? ) 2 A (Donovan) Yes, I am. j 3 0 And were any technical. studies done to support or 4' in anticipation of Supplement No. 1? l 5 A -(Donovan) I don't know what you mean by 6 technical studies. 7 Q Well, I.take it that the creation and promulgation 8 of the Supplement 1 document. resolved some concerns that 9 FEMA had expressed concerning the adequacy of utility-only l 10 planning, correct? l 11 A (Donovan) Well, at the time that FEMA's comments i 12 were delivered to the NRC, there was no discussion as to 13 what the utility plan had to cover. The utility plan could
]
I 14 'have said, we'll tell the public to either evacuate or l 15 shelter, and we'll do no more. And FEMA and NRC had said 16 many years before we felt an offsite plan ought to cover 17 this range of protective actions, and these range of 18 compensating actions, and these measures necessary to 19 protect the public's health and safety. I 20 And there have been no discussion, no hypothesis 21 offered with the proposed rule as Lv-what the content of 22 utility plan and the range of depth of planning the utility 23 plan should represent. l 24 Since that time such a document has1been, 1 25 developed, and such a document does offer a range of Heritage Reporting Corporation (202) 628-4888
sr -
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DONOVAN - CROSS 18407
/~') 1 compensating actions that in FEMA's opinion provide for V
2 appropriate offsite actions to be taken to protect the 3 public health and safety. L 4 Q Let me come,back, Mr. Donovan, because I'm not l 5 sure that that was responsive. 6 The point we were just inquiring about concerning 7 what FEMA's expressed concern was with regard to utility-8 only planning. 9 As I understand it, it's your testimony that FEMA , 10 was concerned that the full range of necessary actions may 1 1 11 not be taken, and that it would be perhaps likely that the i 12 emergency response would be uncoordinated in the absence of 13 state and local participation; is that correct? t( 14 A (Donovan) No , that's not. correct. I'm saying 15 that I interpret the statements and the position that the 16 agency took and the explanation of that statement -- by the 17 way, Mr. McLoughlin was also at this hearing:with Director i 18 Becton, and went into detail or rationale behind the 19 agency's position. It was, again, that there'was no q 20 document proffered or proposed that would discuss the range I 21 of planning i o be . required by a utility prepared offsite 22- agency. And in the absence of that,'it raised the issue 23 that you have been focusing on,'would there be other 24 response necessary to protect the public health and safety. 25 And we believe this document does provide an Heritage Reporting Corporation (202) 628-4888
v> q DONOVAN - CROSS 18408
- (~N - 1 adequate range and depth of preparedness. And then the
? N~/ A f 2 issue is does the utility plan meet the intent of this l 1 3 document. i 4 Q Mr. Donovan, is the point that FEMA was making j 5 when it was expressing some of its concerns about utility-6 only planning to the NRC, was the point simply'that there ] i
.7' wasn't a criteria document? ;
8 Is that's your testimony? ; I 9 A (Donovan) That's part -- I 10 0 That's part of it, is it not? That's part of it. 11 A (Donovan) That's my answer to your questions? ) I 12 O I'm sorry? ] 13 A (Donovan) That's my -- in terms of the context of I () 14 the questions you propose, my answer to your question f 15 stands. 16 Q. Mr. Donovan, isn't it a fact that FEMA was
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17 ' expressing at least two concerns? I 18 On the one hand, it was expressing the fact that 19 there wasn't a criteria document for utility-only planning. 20 But in addition,; it was expressing some reservations about 21 the possibility of utility-only planning actu;11y being , 22 adequate. 23 There were two, at least two parts of FEMA's 24 expressed concern, was there not? 25 MR. FLYNN: I object. Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18409 () 1 MR..DIGNAN: Your Honor, excuse me. I have an V 2 objection, and I don't want to take an undue amount of time 3 because it's a recordholder. 4 We are now examining the witness as to what the 5 document means, this document not having been admitted into 6 evidence for any number of reasons which the Board 7 articulated. The document speaks for itself if he can get 8 it into evidence. And if he can't, then it seems to me we 9 shouldn't be-examining the witness on what it means. 10 MR. TRAFICONTE: Your Honor, we have just gone ] l 11 through that. ; l 12 MR. DIGNAN: That is a straight evidentiary J 13 objection. l () 14 15 MR. TRAFICONTE: Now, I really am getting -- I think it's fair to object, Your Honor, but I believe that we 16 are encountering here simply obstructionist tactics to drag 17 out and prevent my cross-examination. 18 MR. DIGNAN: Well, you are wrong. 19 MR. TRAFICONTE: I am perfectly within my rights 20 in inquiring as to the nature of Supplement No. 1, how Mr. 21 Donovan' understands it resolves certain matters, and what 22 those matters were. We have had literally 45 minutes of 23 argument and maybe four questions.
'l 24 I think my questions are quite clearly focused and 25 in line with what the Board has already indicated is
(~ V) Heritage Reporting (202) 628-4888 Corporation _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ . _ _ ___ a
DONOVAN - CROSS 18410 l 1 appropriate. .And I think Mr. Dignan is simply trying to 2 prevent me from inquiring. 1 3 MR. FLYNN: I have a different objection. j 4: My objection is that the question unfairly
- 5. characterizes the previous testimony. .We went from agreeing.
6 that a utility-sponsored plan was not as good as one with ) 7 the cooperation or one sponsored by the state and local l
)
8- governments to saying that a plan without the cooperation of 9 state and local governments by itself is not adequate. 10 That's not a fair characterization of the previous 11 testimony. 12 JUDGE SMITH: I guess I need the question back. 13 MR. TRAFICONTE: Pardon me? () 14 15 JUDGE SMITH: MR. TRAFICONTE: Do you recall the question? I can put essentially the same 16 question again. 17 JUDGE SMITH: Would you do it again? 18 MR. TRAFICONTE: Sure. We'll do it by the 19 numbers. 20 BY MR. TRAFICONTE: 21 Q Mr. Donovan, FEMA expressed a concern, did it not, 22 that in the absence of state and local participation in 23 planning, that utility-only planning might result in an 24 uncoordinated response at the time of the emergency? l l 25 Isn't that a fact? i l Heritage Reporting Corporation (202) 628-4888 1 i J
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. DONOVAN - CROSS 18411 1 MR. DIGNAN: And this is directed-to the
\ . 2 expression in the document?. 3 MR. TRAFICONTE: I was instructed not to inquire 4 directly with regard to or focusing on the document, Your 5 Honor. 6 MR. DIGNAN: Well, the problem is that your last 7 question, and that's why.you got.the objection, did go to 8 the document. 9 Now, are you off the document? Because if you 10 are, I'm not objecting. 11 MR. TRAFICONTE: I think the que'stion speaks for 12 itself. I'll put it one more time. 13 BY MR. TRAFICONTE: I 14 Q It's a fact, is it not, that FEMA has expressed 15 concern to the NRC about the possibility that in the absence 1 16 of state and local participation in planning the emergency 17 response at the time of an incident may well be 18 uncoordinated? 19 That's a fact, is it not?- 20 A (Donovan) My recall of what was said at that 21 Senate hearing is that that was not the facts presented by 22 the agency. You could look at it from a bottom up or tops' 23 down. You narrow the range of unknowns when you define what 24 is required for a utility-only plan. 25 And basically the two agencies in this document Heritage Reporting Corporation (202) 628-4888 ,
DONOVAN - CROSS 18412 1 basically said, in addition to those standards and review 2 criterion, that a normal partnership arrangement would call 3 for an offsite planning by state and local governments. We 4 required addPeional measures. Compensating me-'ures not 5 only in the planning process, but in terms of compensating 6 actions to implement that plan. 7 So the end product was that we required more 8 stringent criteria to be applied to the review and 9 evaluation of a utility prepared offsite plan. In doing so, 10 we have narrcued the unknowns that were represented at 11 whatever date this letter was originally filed, April of 12 '87. 13 O Come back one more time. I think you answered ll 14 that last question both with a yes and with a no. 15 Is it a fact that FEMA expressed concern that in 16 the absence of state and local participation in planning the 17 response at the time of an incident may well be 18 uncoordinated? 19 Is the answer yes or is the answer no? 20 A (Donovan) Again, at what time? In June? 21 Q In the past. 22 A (Donovan) Pardon? 23 Q The question is some time in the past. I 24 JUDGE SMITH: On April 28, 1987. l l 25 THE WITNESS: (Donovan) With respect to that Heritage Reporting Corporation (202) 628-4888 l l
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l DONOVAN - CROSS 18413 1 letter, the answer is yes. [/^'\, v_ , 2 BY MR. TRAFICONTE: 1 3 Q That that concern was expressed? J 4 A (Donovan) At that time. 5 Q FEMA no longer has that concern, does it? j i 6 A (Donovan) It's my understanding our position is 7 stated as I have just previously stated it. 8 Q Mr. Donovan, I have not tried to rein you in, but 9 FEMA no longer has that concern, yes or no? l 10 A (Donovan) FEMA believes that we have an equitable 11 review basis to proceed forward, review utility-prepared 12 offsite plans and provide a finding of reasonable assurance, ! l 13 to provide a finding that reasonable assurance does not ~(A) 14 exist. v 15 Q Yes. Now, in part, the statement you just made 16 that FEMA is now prepared to make that finding, in part that 17 is based on the fact'that there is a criteria document, 18 Supplement 1, now in existence, correct? l 19 A (Donovan) That's correct. 20 Q Now, can you tell us in what fashion the l 21 supplement document has resolved the issue of the 22 possibility of an uncoordinated response when state and 23 local governments are not participating? l 24 A (Donovan) Because the supplement document j 25 requires the utility-prepared offsite plan to review the l'% (,) Heritage Reporting Corporation j (202) 628-4888
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1
s, , - l DONOVAN:- CROSS 18414 < J1 issue of coordination.with nonparticipating. organizations 2 and.to be prepared to deal with that.. 3 Q. And does thefSPMC have.a provision that does that? ; 4 Does it have provisions in the plan-that meet.that j 5 requirement? 6 A (Donovan) Yes, it does. ( 7 Q' And can you~ describe briefly what portions of. the 1 8 plan contaf*. or meet'that requirement?
]
l 9 A (Donovan) Well, it's interdispersed .throughout . 1 1 10 the plan, but there are multiple approaches to'the' issue ] 1 11 that you are addressing. i 12 One of the approaches is that certain persons have l l 13 been identified to liaison with nonparticipating government. 14 ( Other persons have been identified to determine the status And the ' rest 15 of response of nonparticipating governments. 16 of the organization and the rest of the plan is designed to 17 implement all steps necessary, assuming.the nonparticipating 18 governments delegate authority to d.o so, to take appropriate 19 action to protect the public health and safety. 20 The offsite plan,.as represented in this document, 21- is a stand-alone plan. It is prepared to implement all- l 22 aspects necessary to affect offsite response through all f 23 phases from pre-emergency instructing and educating the ; 24 public day to day, educating'the media, determining those. .) 25 special needs surveys and data bases that are necessary, jg Q Heritage Reporting Corporation (202)' 628-4888 1 lli
i i DONOVAN - CROSS 18415 /} C/ 1 maintaining the letters of agreement with the resource 2 provides to dealing with emergency and training of people
, 3 that would respond and exercising, and drilling those people 4 to follow up of corrective actions to address any 5 shortcomings as a result of their training or drill or 6 exercise program.
7 MR. FLYNN: Let the record reflect that the 8 witness was referring to the Seabrook plan for Massachusetts j l 9 communities which I believe is Applicants' Exhibit No. 42. l 10 BY MR. TRAFICONTE: 11 Q Let's go back, Mr. Donovan. 12 So, if I understood your last answer, the concern 13 about the possibility of an uncoordinated response expressed ; () 14 15 by FEMA was resolved in some fashion by a new criteria document that in part requires that certain liaison 16 functions be identified. 17 Is that a fair statement? 18 A (Donovan) That is a statement that's basically 19 correct. i 20 Q Okay. And the function of these liaison l 21 personnel, as described by Supplement No. 1, is in part to j 22 handle the issue of the lack of coordination; is that l l 23 correct? 24 A (Donovan) I would not answer it that way. The 25 Supp. 1 criteria identifies persons to facilitate the /^N (_) Heritage Reporting Corporation (202) 628-4888
v , DONOVAN - CROSS 18415 i 7 1J maintaining the letters of agreement with the resource ( 2 provides to dealing with emergency and training of people i
; 3 that would respond and exercising, and drilling those people.
4 to follow up of corrective actions to address any 5 shortcomings as a result of their training or drill or 6 exercise program. 7 MR. FLYNN: Let the record reflect that the 8 witness was referring to the Seabrook plan for Massachusetts 9 communities which I believe is Applicants' Exhibit No. 42. 10 BY MR. TRAFICONTE: 11 Q Let's go back, Mr. Donovan. 12 So, if I understood your last answer, the concern i 13 about the possibility of an uncoordinated response expressed [)
\_/
14 by FEMA was resolved in some fashion by a new criteria I j 15 document that in part requires that certain liaison 16 functions be identified. 17 Is that a fair statement? ;
-l 18 A (Donovan) That is a statement that's basically !
19 correct. 20 Q Okay. And the function of these liaison j l
\
21 personnel, as described by Supplement No. 1, is in part to j J 22 handle the issue of the lack of coordination; is that 23 correct? 24 A (Donovan) I would not answer it that way. The 25 Supp. 1 criteria identifies persons to facilitate th; 1 Heritage Reporting Corporation (202) 628-4888
, l, u-____________.__.____.__..._
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DONOVAN - CROSS 18416 I 1 information flow that identifies other persons to deal'just
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U l' 2 with the subject of coordination. Identifies other persons s 3 to implement portions of the SPMC once legal authority has 4 been transferred or delegated. 5- Q Let me just see if I can get you to agree to.a j I 6 series of syllogistic statement. l 7- There was a problem of incoordination. It was 8 identified by FEMA based on its experience and expertise. l E 9 There was the creation of a new Supplement 1 document that l 1 10 identifies a new position in the staffing of an emergency l 11 operation called the liaison position. That position was 1 12 intended to function as an interface between the. l 13 nonparticipating governments and the utility organization. ; () 14 FEMA is now of the judgment that, with proper i 15 staffing of that liaison position, there should no longer be i l 16 and there will no longer be the problem of the lack of J 17 coordination. ! l 18 Would you sign off on that? 19 A (Donovan) No, I do not, because I don't agree I 20 with your first statement. Your first statement was that 21 FEMA says there is a problem on coordination. 22 FEMA said, I believe, there's a possibility.of 23 incoordination, and they are completely different animals. 24 MR. TRAFICONTE: I'm going to use this document to 25 impeach, Your Honor. I would like to use this and offer it l O) (, Heritage Reporting Corporation (202) 628-4888
m DONOVAN - CROSS 18417 q 1 into evidence to impeach. 2 The statement and the comment was it does make it 3 highly unlikely that'any response will be. uncoordinated. 4 And boy, if that isn't an expression of serious concern 5 about the possibility of incoordination or if not the . l 6 possibility about the very likelihood of.a lack of 7 coordination, I haven't seen one. 8 I would like to offer this to impeach. l 9 10 11 q 12 13 () 14 15 16 17 18 19 20 21 22 23 24 25 O Heritage Reporting Corporation (202) 628-4888 l l l
I DONOVAN - CROSS 18418 l 1 JUDGE SMITH:. What is it you are offering to
- 2. impeach?
2 MR. TRAFICONTE: I'm sorry. I'm referring'to Mass j
- . l 4 Exhibit 61. And the,very language that I had been asking- ')
'5' directly about concerning FEMA's expression o'f concern with a
6 regard to the lack of coordination -- strike that -- to the j 1 7 possibility that the response would be' uncoordinated.. i 3 8 JUDGE SMITH: Why do you need it?- 9 He.does not quarrel that the statement was made? 10 MR. TRAFICONTE: He just quarreled with it, Your j L l 11 Honor. He just said that FEMA has never expressed a concern l 12 about the likelihood that the response would be ! 13 uncoordinated. . i ) () 14 15 JUDGE SMITH: Is that your opinion?, THE WITNESS: (Donovan) -It was not my statement.- 1 16 He said there was a problem. I said FEMA said J l 17 there was a possibility. u
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18 JUDGE SMITH:- Or the likelihood..
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1 19 MR. TRAFICONTE: He would not assent to my 20 statement that FEMA has stated that'there is a problem 21 .concerning the possibility of the lack of coordination.' l 22 G ou G's SMITH: Let's take what FEMA says. FEMA 1 23 says that the proposed rule does make.it highly likely that ] 24 any response will be uncoordinated. Now that's what they 'j 25 said. Whatever they said that's what it is. 1 1 Heritage Reporting Corporation (202) 628-4888
v- 7
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DONOVAN - CROSS 18419 i l
/\- 1- MR. TRAFICONTE: Yes. \s /- I 2 JUDGE SMITH: Now what do you need more than that? l l
3 MR, TRAFICONTE: Fine. 4 BY MR. TRAFICONTE: I 5 Q Let me pursue a little bit further with the 6 development of the liaison position, Mr. Donovan. 7 1s it FEMA's judgment that if the utility plan has 8 liaison personnel that by so having or by,so designating l L 9 personnel with that title and function the problem of'the 10 lack of coordination of the response is no longer'a problem? i 11 A (Donovan) -Could you rephrase your question? 12 Q Sure. 13 A (Donovan) I don't understand your point. () 14 15 Q Prior to supplement number one being promulgated , an emergency plan did not have to identify liaison personnel 16 between nonparticipating governments and the utility 17 organization. 18 Is that correct? 19 A (Donovan) That's correct, q 20 Q And upon the promulgation of supplement one, that l s 21 is a requirement for a utility plan. 1
-j 22 Is that correct?
23 A (Donovan) That's correct. 24 Q And is it FEMA's view that that requirement has 25 some real world effect, that there's a purpose to that Heritage. Reporting Corporation (202) 628-4888
i DONOVAN - CROSS 18420 1 requirement? O 2 A (Donovan) Yes. 3 Q And what is that purpose or effect? 4 A (Donovan) Well, the criterion that you're ) 5 referring to -- 6 Q C-5, is it not? 7 A (Donovan) -- says: "The offsite response 8 organization shall identify a liaison personnel to advise 1 l 9 and assist state and local officials during an actual ' 10 emergency in implementing those portions, that is, of the q i 11 offsite plan where state and local response is identified." l 1 f 12 Again, the SPMC does not call for state and local ] 13 response to implement the SPMC other than legal authority. l () 14 15 Q I was trying to hold one subject to the side while we pursued it, but you're forcing me to mix apples and 16 oranges perhaps. 17 It's a fact, is it not, that the SPMC has more l 18 than one mode in it? It has Mode No. 1; it has Mode 2; and 19 it has a mixed Mode 2. 20 That's correct, is it not? 21 A (Donovan) That's correct. 22 Q Those are modes of implementation pursuant to 23 which the SPMC would be implemented at the time of an f i 24 emergency, correcb? I 25 A (Donovan) That is not the way I would 10 V Heritage Reporting Corporation (202) 628-4888 I 1' L________----_----_.-----
l DONOVAN'- CROSS 18421 1 -['S~ 1 characterize it. I 2 0 You do not consider those modes of implementation? j, 3 A (Donovan) I don't know what you mean by your , 4 statement, the'SPMC has three-modes, which we describe on. l 5' page 24 and 25 of 180 of 43 (c) . 6 And those modes state that they will' function in 7' 'one of the modes. And a brief description of the modes 8 which would be a standby mode. That assumes state and local 9 government respond. 10 Mode 1, that is standby mode.. Excuse me. State 11 and local responses with no assistance from the offsite 12 response organization. Utility's offsite. response 13 organization. () 14 15 Mode 1, state and local government'will respond.. And the offsite response organization provides resources.- y 1 Mode 2, state and local government do not respond
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16~ ) 17 other than delegation of authority ~and utility prepared 18 offsite response organization implements authorized actions. 19 Supplies needed resources, integrates responses, et cetera. 20 0 Would you for my benefit,='Mr. Donovan, define 21 " implementation capability" as the phrase is used'in NRC 22 regulations? 23 A (Donovan) The ability to implement their plan. 24 Q Understood in that fashion does the SPMC have more ' 25 than one way in which it could be implemented? Heritage Reporting Corporation (202) 628-4888
1
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DONOVAN - CROSS 18422 [~S' 1 A (Donovan) If you define these modes as a method j 2 of different means or type of implementation. 3 Q I don't want to circle around each other. 4 The NRC ' rule at 50. 47 (a) (2) grants to FEMA.a 5 rebuttable presumption as to questions of implementation
.i 6 capability.
7 I take that to mean that FEMA is to be able to at. 8 least define in an NRC proceeding what implementation 1 9 capability is. 1 10 Now, are there three modes in the SPMC that you 11 just discussed modes of implementation for the SPMC? 12 If you're not sure that's a perfectly appropriate t 13 answer. () 14 A (Donovan) Well, I don't understand your language. 15 We reviewed the SPMC on a Mode 2 full basis. That 16 is that the nonparticipating offsite governments would only , 17 delegate authority. We viewed the SPMC as a stand alone ! 1 18 plan. No resources and no assistance from nonparticipating T 19 state and local governments. 20 MR. TRAFICONTE: Your Honor, if the FEMA -- and I 21 think this is the third time I've said it and I have 22 certainly said it any number of times outside the hearing j i 23 room -- if FEMA would stipulate that FEMA's judgment as, to ] 24 reasonable assurance with regard to the implementation. 25_ capability of the SPMC extends to Mode 2 full, i.e., a stand Heritage Reporting Corporation (202) 628-4888 i 1
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1 l DONOVAN - CROSS 18423 : .
-1 alone plan where-legal authority -- requisite legal 2 authority it delegated in the state -- strike.that -- the 3 utility organization basically implements the entire plan.
4 If FEMA will stipulate that its review and finding 5 to which a rebuttable presumption will attach is limited to- . 6 that mode of implementation, we can move on. 7 On the other hand, if FEMA is in here trying to 8 defend its reasonable assurance finding as to the other 9 modes in which the plan can.be implemented, I'm going to 10 keep hammering on this' door. l 11 MR. FLEN: 'I don't know that it's necessary to 12 drag this out for as long as Mr. Traficonte seems to think 13 it's necessary. But-neither do I think that the stipulation l 14 which he has' suggested is appropriate either. . b 15 It's largely a matter of argumentation. But I I 16 would not go so far as to say we have no position or no 17 opinion on Mode 1. 18 We may not have factual information which was part 19 of the review process, and this can be explored in further 20 questioning of the witness. But we have assumptions. 21 We have the assumption, for example, that the T l 22 state and local governments will exercise their best efforts 23 and that they will be reasonable efforts to protect their 24 citizens. 25 I think Mr. Traficonte is basically trying to i O)
'v Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18424 /~'T 1 argue the witness into saying we have no opinion on V And he hasn't said that so far. 2 implementability of Mode 1. 3 I think it should be explored. But I would also 4 say that if the line of questioning is going to suggest that 5 we should present, we should bring forward the facts or the 6 basis thet was developed in our review for doing so, that's 7 going to lead us down an unfruitful path. 8 It's largely a matter of how the assumptions were 9 applied that gets us to the point of being able to express 10 an opinion on Mode 1. 11 MR. DIGNAN: Your Honor, may I point out once 12 again that as usual I'm being left out of stipulations. And i 13 if they want a stipulation that means something they've got j () ! 14 to get the Applicant as a party on it. 15 But I'll offer them a stipulation. The Applicant { i 16 is prepared to stipulate that FEMA reviewed and exercised 17 the plan in Mode 2. And it is the Applicant's position that ; 18 FEMA having done that the Board should find -- it's the 19 Applicant's position, I'm not asking him to agree with it. l l 20 It is our position that the Board therefore can find that 21 there is no problem with Mode 1 because the assumption is 22 that if the state contributes the response will be better 23 and more effective than it would be than if only the utility 24 acted. 25 And that it is the Applicant's position, also, the (, Heritage Reporting Corporation (202) 628-4888 l
DONOVAN - CROSS 18425 1 exercise and review demonstrated that the Applicant has the 2 means of coordinating with the state. And it's that simple, j! 3 That's our case. , 4 And if that stipulation will move to cross off the j 5 dime or if it's worth it to recess to try to put it down in ] i 6 writing, I'm more than happy to do it. I 7 Because our protection of Mode 1 is strictly on 8 the basis that Mode 1 will be better than Mode 2 could be 9 because it involves a state. input. As I' understand it, the i i 10 general thrust of the entire philosophy of the rule is that .I i 11 it's better to have something planned than unplanned. And 12 it's better to have the state in and contributing than not. ! 13 And if Mr. Traficonte wants that-stipulation, I'll 0) ( 14 be glad to sit down and work. it out with him. 15 MR. TRAFICONTE: Is the Applicant. prepared to ; 16 withdraw as modes of implementation on the basis of which '! 17 this Board could make a reasonable assurance finding. All 18 modes other than Mode 2 full legal authority? 19 MR. DIGNAN: No. 20 MR. TRAFICONTE: All right. If he is not, as he I 21 indicates he's not, I take it that we must be in here in 22 part litigating the adequacy of the other modes as well as ] l 23 Mode 2 full. J 24 MR. DIGNAN: Only to the extent that I am saying
]
l 25 that if the Mode 2 full is all right, then by definition 1 1 Heritage Reporting Corporation j i (202) 628-4888 i f E_____-.___________--
ym - DONOVAN - CROSS 18426 1 Mode 1 is better. 2 MR. TRAFICONTE: That definition is not in my 3 Webster's, Your Honor. I don't know how that could follow f 4 by definition. 5 If the Boston Celtics are in full force on the 6 court and Your Honor and I join them because two of their 7 regulars need to sit down and get a blow for a few minutes, 8 .I for one would think the team has been weakened. 1 9 MR. DIGNAN: I agree. 10 MR. TRAFICONTE: I'm not ready -- 11 MR. DIGNAN: 1 agree. Ynu get on the court. 12 (Laughter) 13 MR. DIGNAN: I have no question if you get on the t 14 court. ; 15 JUDGE SMITH: I don't join in any such 16 stipulation. ! 17 MR.-DIGNAN: Whether His Honor would improve the i 18 team in its weakened condition, I don't know. 19 (Laughter) 20 MR. DIGNAN: But in any event, if I hear you l 21 correctly what you're saying is that.the whole response will 22 be weaker if my people are joined in the field of evacuation 23 by the state people? Is.that Massachusetts' position? ' 24 MR. TRAFICONTE: The fact of the matter is, Your 25 Honor, -- O Q- Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ _ . . _ _ _ _ __ a
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DONOVAN - CROSS 18427 1 MR.-DIGNAN: Wait a minute. d(\ Is that the Commonwealth's position? That if your 2 3 police ^and your Governor and your Attorney General and all j the forces of the Commonwealth get in it will be a weaker j 4 5 response than if the utility does it alone? q l 6 .Are you seriously taking that position? ]I 7 MR. TRAFICONTE: I certainly am, Your-Honor. 8 The whole point that FEMA identified -- the whole 9 comment -- l 10- MR. DIGNAN: I hope the Globe is here today. 11 (Laughter) 1h MR. DIGNAN: That is remarkable,,Mr.;Traficonte. 13 MR. TRAFICONTE: If I might be heard, Your' Honor. 14 The fact of the matter is, not only is it not' 15 remarkable but it's exactly what FEMA -- the concern that 16 FEMA was expressing. 1 17 The reality of Mode 1, at least the reality of a q l l 18 Mode 2 partial where a portion la delegated and a portion is 19 retained and you have a wild and wooly intermixing of j 1 20 jurisdictions and emergency response functions. 21 FEMA's concern as it's expressed in the letter and 22 I think as Mr. Donovan's testimony makes clear is that 23 there's going to be a lack of coordination between these two 24 different organizations. ] I 25 . FEMA proceeded and the planners proceeded to '
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(_)L Heritage Reporting Corporation (202) 628-4888 t z i
DONOVAN - CROSS 18428 j
/~% 1 -generate a plan that's stand alone plan. Their notion was, l 2 you create a plan that can stand by:itself. You have.a z 3 complete separate' organization, the ORO, it can'do- j 4 everything assuming it gets the requisite legal authority. I J
i 5 FEMA reviewed.the plan on that basis. If,I I r 6 understand my brother, at this point he wants me to somehow j i 7 concede that: assuming that's adequate. Assuming for the j 1 8 sake of the argument that the ORO can make an adequate 1 j 9 response. ;
)
10 Therefore any of the other modes where the state i 11 might come in and try to do something to supplement what the' ) l ;12 ORO does or vice versa. In the absence of any real hard l ; t 13 evidence that it will be a coordinated joint enterprise has () l 14 to be just as good as whether or not -- just as good as a 15 circumstance when ORO does it-all j 16 MR. DIGNAN: You are as usual picking and choosing 17 what I said earlier, Mr. Traficonte. I said we demonstrated 18 the ability in the exercise and through the plan to 19- coordinate with the state. 20 And to give you a hard illustration, you've had 21 witnesses in here talking, for example, about the fact that 22 the ACPs are going to: (a) be manned late; (b) that these 23 amateurs won't be able to do it. 24 I venture to say, and I assume it is the Attorney 25 General's' position, that if in fact the Governor turns out Heritage Reporting Corporation (202) 628-4888
--,s , i DONOVAN - CROSS 18429 1 the state police, they will be more efficient, better 2 equipped and faster at manning and supervising an ACP'than 1 J 3 my people would. i l-4 Now is your position different than that? j t 5 MR. TRAFICONTE: Your Honor, are we engaging in 1 6 planning by assumptions? j l 7 MR. DIGNAN: No,-No. i 8 MR. TRAFICONTE: We have been through this many ! i 9 times. 10 MR. DIGNAN: No. We're getting down to a { I g 11 fundamental thing. ! l L 12 MR. TRAFICONTE: You are certainly getting down j ( 13 to a -- () 14 MR. DIGNAN: I am amazed if the Commonwealth's 15 position is that if we get the -- if in fact the balloon l 16 goes up. And in fact the assumptions are followed which j 1 17 presumption is that the Commonwealth,h will follow the utility 18 plan, that the response will be weaker by the participation 19 of the Commonwealth's forces than it would be otherwise. ; 20 I find that an extraordinary position for the 21 Attorney General of this Commonwealth to be defending. 22 MR. TRAFICONTE: Your Honor, we have contentions 23 that we filed that have been admitted. Contention JI-61; 24 contention JI-62. The focus of those contentions is just as 25 absolutely beyond. dispute: is the implementation capability Heritage Reporting Corporation (202) 628-4888
l DONOVAN - CROSS 18430 (~ 1 of the SPMC in Mode 1 and in Mode 2 partial, i.e., a mixed ) Q)} 2 integrated or allegedly integrated response. 3 We're challenging the plan in those modes. In 4 fact today we're filing testimony in support of those two 5 contentions. l t 6 I want to know whether TEMA is in here defending ! i
^
7 the implementation capability of this plan in those modes. 8 If it is not, that's fine we can push 'on. If it.is, I 9 intend to explore Mr. Donovan's bases for finding adequacy 10 as to those other modes. 11 I can't imagine anything that could be.-- 12 MR. DIGNAN: Why don't you ask him that question. 13 directly now? ! I 14 MR. TRAFICONTE: Because you're going to object to 15 it. j s 16 MR. DIGNAN: No. 17 MR. FLYNN: I would like to suggest -- 18 MR. TRAFICONTE: Well, it's amazing. It will be
!I 19 one of the few times that you haven't. objected.
20 MR. FLYNN: I would like to suggest that Mr. , 1 21 Traficonte hasn't been listening to the. witness' answers. l 1 22 He has made a point. He has said several times that'there ! 23 are different functions for ORO people in the plan. 24 There's a liaison function which facilitates the 25 flow of information. There's another liaison function-which Heritage Reporting Corporation (202) 628-4088 1 1 _ _ _ _ _ - - 1
i DONOVAN - CROSS 18431 () 1 coordinates responses. There's a third liaison function -- V 2 there's a third function that ' monitors the response of the 3 plan. Monitors the response of state and local governments. 4 I think the point is if it were to be developed is-5 that the implementation of the plan can never be any worse 6 than stand 2, it may be'better because it will be 7 coordinated. 8 JUDGE SMITH: You don't have a stipulation.- 9 MR. TRAFICONTE: Yes. 'That's clear. 10 BY MR. TRAFICONTE: 11 Q Mr. Donovan, have you formed a judgment that Mode 12 1 of the SPMC would be an adequate way in which the plan 13 could be implemented? ; () I 14 A (Donovan) I don't know how to answer that 15 question. But I would like to anewer it in a different way 16 if I may. 17 Q Well, the question is: have you formed a judgment? 18 It seems to me that would be a yes or no. But if 19 you're uncomfortable with a yes or no answer to "have you 20 formed a judgment," go ahead. 21 A (Donovan) When I perform my agency's 22 responsibilities I don't make conjectures. I look at facts. l 23 Obviously, in this particular situation the , 24 position of the State of Massachusetts and its local 25 governments is that they're not participating in the
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I l :. ! .i DONOVAN - CROSS 18432 I
.O 1 planning process.
U 2 So to develop a finding for my. agency to review I' 3 and adopt-I was not going to.present'them conjectures on. .l i 4 what might be in terms of a way-of a state or-local l 1 5 government. response. 6 We did look'in the planning phase as to the 7 details of planning identified in the implementing 8 procedures of the various groups of persons who were
'9 targeted ' to interface . with the nonparticipating governments. ,
10 And that would be responsive to his question on 11 whether we looked at Mode 1 phase of response. We did look, 12 as Mr. Dignan has stated several times, in our exercise on I 13 our ability to provide coordination and response efforts. 14 And we looked at it at several levels to nonparticipating. ! 15 state and local governments. f 16 It's our position that in the parameter of a Mode. 17 2 basis that the plan can be impismented as'a stand alone ! i 18 plan. f 19 And as Mr. Flynn said, it follows that obviously, ! 20 if it can be implemented as a stand alone plan,.it can be 1 21 implemented with the resources and cooperation of the state 22 and local governments'as well, which would be responsive to j 23 his question on Mode 1 or less than full Mode 2. 5 24 Q Mr. Donovan, Mode 1, is it not, is a notion that 25 the utility -- strike that -- that the Commonwealth at the Heritage Reporting Corporation (!202) 628-4888 u _ - _ - _- _ _ . _ _ _ _ _ _ _ _ _ _ o
i DONOVAN - CROSS 18433
/~h - 1 time of the emergency would take command and control over- l C 2 the response.and that ORO would stand by-available with i 3 resources if needed.
4 That's what Mode 1 essentially is, correct?'
.5 A (Donovan) No. That's a standby. You described a 6 standby mode. ,
7 Mode 1 says that they are supplying needed 8 resources which means that the offsite response organization 9 offered and proffered by the utility is contributing to the j i
.10 response effort. 1 11 Q How about if the Commonwealth doesn't request or ]
1 12 require any resources, wouldn't Mode 1 be.then basically 13 that the Commonwealth takes command and control of the () 14 15 response and that the ORO stands by ready to provide resources if needed. q 16 That's a fair characterization? l- 17 A (Donovan) No. That's a standby mode. I have 18 defined it on page 25 of 380 and I can go'to the exact text I 19 of the plan if you prefer. But I believe our 20 characterization is represented on page 25 of 180. A ) 21 standby mode is that they stand by and continue assessment 22 functions and monitor state and local response. f 23 Mode 1 is that they supply needed resources. 24 Q If requested; correct? 25 A (Donovan) Well, if they supply resources they
)
O Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18434 1 A (Donovan) Well, if they supply resources they 2~ would move off a standby mode and they're in a Mode 1 1 I 3 response. 4 Q I don't want to get into a semancic,al struggle 5 with you. 6 I'm more interested in what it'is that you 7- understand the' Commonwealth is doing. 8 What is.the Commonwealth doing in Mode 1? i 9 A (Donovan) Asking ORO to perform certain ) 1 10 functions. ] I 11 12 13 () 14 15 j 16 17 1 l l 18 l 19 20 21 22 l 23 24 25
'P) 'ss e Heritage Reporting Corporation (202) 628-4888
.) :
DONOVAN - CROSS 18435
'l .Q In Mode 1?
2- A (Donovan) Yes. 3 Q Asking it'to perform certain functions or 4 supplying resources? l l 5 A (Donovan)- Well, when it's supplying resources 6 it's performing.a function. I don't see any difference 7 between the two. 8' Q Well is, for example,' conducting the or sending 9 personnel to the traffic management points, is that assuming 10 that the Commonwealth requested and delegated authority for 11 ORO to do.so. Would that be a Mode 1 response or a Mode 2 12 response? 13 A (Donovan) Mode 1. It could be both, Mode 1 and 14 Mode 2. But I would take that if they. asked, you send 15 personnel to these points, ORO would send them to them. 16 That is, in a generic term, resources include personnel, 17 equipment, supplies, et cetera. 18 Q Mr. Donovan, I guess we're going to have to go 19 through this and nail it down. There appears to be some i 20 lack of connect between you and I. 21 Let's turn to page 25 of 180 of Exhibit 43 (c) your 22 report. There you state on page 25, you give a very short 23 definition of these modes, do you not? 24 A (Donovan) Yes. I do. 25 O Isn't your definition of Mode 1 there supplies ) Heritage Reporting Corporation (202) 628-4888
v DONOVAN - CROSS 18436 1 needed, resources - . supplies needed, resources only? 2 Those are your words, are they not? 3 A (Donovan) That's correct. 4 Q So Mode 1 is that the ORO stands by.and provides 5 needed resources only; correct? 6 A (Donovan) We're looking at it different' ways. 7 You said it would be in Mode 1 if they -- I l 8 believe if they-supplied resources. 9 Q My example was traffic personnel. 10 A (Donovan) That's Mods.1 response. 11 Q It is.
. 12 Well then let's look here at Mode 2. Mode 2 cn1 L 13 page 25 is defined as: " Implements specific authorized 14 actions."
15 Wouldn't the supply of traffic personnel and their 16 dispatch to various locations, wouldn't that be a Mode 2 17 response? 18 A (Donovan) I said in my early answer, it could be 19 either Mode 1 or Mode 2 depending on how you wanted to look
~
20 at it. 21 Q Let's focus on what it is the Commonwealth is l 22 doing in those areas where it is not either under Mode-1 or 23 Mode 2 delegating authority to the ORO to perform certain 24 functions. 25 In Mode 1 and in Mode 2 partial the Commonwealth
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-~v i DONOVAN - CROSS 18437 I l
/"') 1 is doing something, is it not?
(m/ 2 A (Donovan) Yes. 3 Q What is it doing? i l 4 A (Donovan) As conjecture I don't know. 5 If you want to give me a hypothetical I'll respond l l 6 to a hypothetical, but I'm not going to make a guess. 7 Q Have you formed the judgment that implemented in 8 that mode that I just described where a partial 9 responsibility has been shifted on to the ORO but that 4 10 command and control has been retained by the Commonwealth, ; 1 11 have you formed the judgment that implemented in that 12 fashion this plan will provide reasonable assurance? 13 A (Donovan) FEMA has provided a finding to the NRC () '14 15 that says the plan as it exists, the resources that are available, the capabilities have been demonstrated to 16 implement that plan. The people have been trained, et , 1 17 cetera. And that provides a reasonable assurance. 18 Q I'm going to ask that you answer my question, Mr. 19 Donovan. 20 Has FEMA formed the judgment that in the 3 21 circumstances I described there is reasonable assurance if 22 the plan were to be implemented in that fashion. 23 MR. FLYNN: Asked and answered. 24 I suggest that the answer to the previous question p 25 was responsive. Heritage Reporting Corporation (202) 628-4888 l l
v , i DONOVAN - CROSS 18438 1 MR. TRAFICONTE: I ask that the Board direct the 2 witness to answer the question in either a yes or no form. 3 JUDGE SMITH: You have two questions. Your second 4 question is different from the first. Which one do you want 5 answered? 6 MR. TRAFICONTE: I would like the first answered. 7 JUDGE SMITH: And that is the one where the state 8 retains control. l l l 9 MR. TRAFICONTE: The state retains command and 10 control and either requires or requests some resources or in z I' 11 the event that it partially delegates a certain response 12 function to the ORO, but meanwhile retaining overall l l ( 13 responsibility for other functions and command and control.
- () 14 The question to the FEMA witness is, has FEMA 15 formed a judgment as to whether implemented in those forms l 16 or in those modes the SPMC establishes reasonable assurance?
l 17 MR. DIGNAN: Does the question assume that the 18 state is following the SPMC? 19 MR. TRAFICONTE: The question is put to the 20 witness, Your Honor. 21 MR. DIGNAN: No, no, no. That's important. 22 That's very important. Because the findings FEMA has made 23 is that the SPMC is adequate. Not'that some plan l 24 Massachusetts is running off in the backroom is adequate. 25 MR. FLYNN: The point of the previous answer was Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18439 (~~T 1 that the plan reviewed as a whole. That there was an V 2 overall finding on the plan. l 3 MR. TRAFICONTE: That's a-helpful comment, Mr. l 4 Flynn. 5 Does the overall finding as well then include a 6 finding that as to the specific modes of implementation, 7 each is adequate? 8 MR. FLYNN: I'm sorry, was the question put to me? l ' l l 9 MR. TRAFICONTE: Yes. 10 Your comment that it's an overall finding, does 11 that therefore mean that each of its component parts and 12 implementation modes are also adequate? , l l 13 NR. FLYNN: Well, that was what I was trying to (g e-j 14 articulate earlier. 15 MR. TRAFICONTE: Then the witness -- 4 l 16 MR. FLYNN: Excuse me. If you've asked me a 17 question I would like the courtesy of being able to answer-18 it. 19 The point I was trying ~ to artiu0, ste earlier was i 20 that, it's a fortiore argument. That the most stringent ' 21 conditions would be where the state contributes no 22 resources. Does not take command and control. And does 23 nothing '.'ut delegate authority to the ORO to carry out the 1 24 plan. 25 i% have some difficulty in coming to agreement on l l 1 iG
- (,j Heritage Reporting Corporation (202.) 628-4888 l
u
DONOVAN - CROSS 18440 1 what mode that might be. But whatever it is, that's the (]N
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u, l 2 most stringent condition. 3 Having found that the plan implemented in that way 4 complies with the requirements of Supp. 1 and is a matter of 5 the exercise that it can be implemented, it follows that 6 with the combined resources of the state and local 7 governments on the one hand and the ORO on the other and j l 8 with the measures that are taka.n in the plan to assure j i l 9 monitoring of state and local response and coordination ) i 10 between the ORO and the state and local governments that, as ) i 11 I said earlier, the worst that can happen is that the ORO
)
12 would have to do it -- implement the plan by itself. And j 13 that anything beyond that is an enhancement. l () 14 MR. TRAFICONTE: Your Honor, the problem we're l 15 having now is FEMA counsel just sounded like testimony to 16 me. 17 JUDGE SMITH: Wait a minute. 18 Mr. Flynn, there's an implication in Mr. 19 Traficonte's question and he has a right to explore and that
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20 is that your premise is not correct. That there is 21 something about retaining command and control by the state 22 which weakens the overall plan as compared to a full 23 delegation. 24 Is that the implication of your question? 25 MR. TRAFICONTE: Yes. Heritage Reporting Corporation (202) 628-4888
ai y DONOVAN - CROSS 18441 1 JUDGE SMITH: And that's the implication of the 2 question. And if he agrees with that premise or not agree, r 3 but has he taken that into account and have they arrived at 4 a finding that Mode 1 meets the reasonable assurance b 5 standard.
., 6 MR. FLYNN: I agree that that is an appropriate 7 question.
8 What I was trying to establish is that I don't 9 think Mr. Traficonte understood the answer that the witness 10 gave to his previous question. 1 11 JUDGE SMITH: I gitess I didn't understand it 12 either. I don't know if this witness hus ever directly > = 13 wrestled with the concept that the Attorney General is 14 suggesting that retaining command and control by the state 15 somehow diminishes the overall effectiveness of the plan. 16 MR. FLYNN: Well, yes. And I think Mr. Traficonte 17 is trying to make an additional point and that is that the 18 issue is not the coordination between the ORO and the state 19 and local governments. The issue is the coordination within 20 the governmental response regardless of what the ORO does. 21 JUDGE SMITH: Whatever perceived weaknesses are in 22 state command and control. Whatever they are, that is the . 23 premise of the question. 24 He didn't get into the details yet. Or did he? I 25 don't think so. Heritage Reporting Corporation (202) d28-4888
<a , n.
v i DONOVAN -l CROSS 18442 1 1 MR. FLYNN:. No. .I agree that'that question 1has 2 not been put to the witness yet. 3 MR..TRAFICONTE: This' cross-examination has.got,to 1 4 set a record for the witness and the cross-examiner ~having 5- so little exchange out of.the total time being taken. ] 6 Let me go back and put the question again. 1 7 BY MR. TRAFICONTE: . 8 Q' Mr.' Donovan, however.you understand Mode 1 and j 9' Mode 2 partial, have you formed the judgment that if the 10 plan were to be implemented in those modes it provides 11 reasonable assurance that adequate protective. measures can 12 and will be taken? l 13 Have you formed that judgment? () 14 15 A (Donovan) You said that'the plan known as SPMC is adequate and the plan is capable of being implemented in the i 16 Mode 2 response and that it infers that it can be 17 implemented in less than a Mode 2 response. full. l 18 Q Have I said that? 19 I'm sorry, I missed the very first part of your- ; 20 answer? 21 A (Donovan) I said, our finding infers that if it 22 can be implemented in what FEMA perceives to be.the worst ' 23
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case possible, Mode 2 full, that it could be implescated 24 with a combination of less than Mode 2 full. 25 Q So the answer is, yes. You have formed the l O h Heritage Reporting Corporation. (202) 628-4888 L L_ _ _ - - -
m . DONOVAN - CROSS 18443 3 1 judgment that if the -- 2 A (Donovan) Don't say me. 3 0 Well I want to ask you directly.the question, Mr. 4 Donovan. I.want to ask you directly the question. 5 Have you formed the judgment that if the plan were 6 implemented in accordance with Mode 1 that there is 7 reasonable assurance that adequate protective measures can 1 i I 8 mad will be taken? 9 Have you formed that judgment? 10 A (Donovan) Why are you differentiating? 1 11 Heretofore you always want me to be the agency. Now you l 12 want me to be an individual? 13 JUDGE SMITH: That's a fair question, Mr. Donovan. D 14 If you can answer it, answer it. (} 15 THE WITNESS: (Donovan) Yes. 16 Well, Le-didn't put enough parameters around it. 17 JUDGE SMITH: Well, if you can't answer it -- if l 18 you need more clarification that's appropriate. 19 But the gist of the question is satisfactory. 20 BY MR. TRAFICONTE: l 21 Q Do you need more clarification? 22 A (Donovan) Yes, please. 23 Q In.what particular? 24 A (Donovan) Well you're saying the SPMC plan'-- 25 Q Mode 1. ORO's available to provide resources if (202) 628-4888
DONOVAN - CROSS' 18444 1 requested. Commonwealth does whatever it does under~ Mode'l 2 in however way you've understood that.. 3 Have you made the' judgment.that that
'4 implementation mode ~provides reasonable. assurance or I '5 adequate protection? .
6 A (Donovan) Can;I confer with counsel? 7 Q- No. l 8 A (Donovan) I believe the plan can be implemented.
- 9. Q I'didn't.ask you;if it could'be.
10 I asked, have you formed the judgment'that -- 11 A (Donovan) Well isn't that my judgment, I'm saying 12 -the plan can be implemented. 13 What question are you asking.me? You asked me if [ ) 14 the plan can be implemented. -
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15 Q No. I asked you-the reasonable assurance 16 question. 17 A (Donovan) Rephrase or restate. 18 Q Yes, of course I will. 19 Mr. Donovan, have you formed the judgment-that 20 Mode 1, however you've understood it, in a circumstance 21' where the ORO stands by ready to provide resources and the 22 Commonwealth does whatever it does under your understanding 23 of Mode 1, have you formed the judgment that the SPMC i i 24 implemented in that mode provides reasonable assurance that- i
,1 25 adequate protective measures can and will be taken? l I
1 0 eata- an, c-e-n (202) 628-4888 1 Y
i DONOVAN - CROSS 18445 1 A (Donovan) This is a personal judgment. Not
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2 professional, personal. 1 3 Q I mean it professionally, of course.
]
4 A (Donovan) No . . You didn't say it that way.- You 5 said as a person. 6 JUDGE SMITH: Whatever'you are. As you sit there i 7 right now this afternoon. k 8 THE WITNESS: (Donovan) Yes. I think it provides 9 reasonable assurance. i 10 BY MR. TRAFICONTE: [ 11 Q Now, Mr. Donovan, have you reviewed the. L 12 Commonwealth's generic state plan? l 13 A (Donovan) No. I have not. 14 Q Have you reviewed the pre-1986 planning efforts 15 that the Commonwealth engaged in for the Seabrook site? 16 A (Donovan) No. I have not. 17 Q Have you made any effort to contact Commonwealth 18 officials regarding the state of the Commonwealth's 19 preparedness? 20 A (Donovan) No. I have not. I 21 Q And have you reviewed the material that the Mass 22 AG produced in response to certain discovery matters in this 23 case? 24' A (Donovan) No. I have not. I 25 Q Have you reviewed the answers -- I take it, 1 l Heritage Reporting Corporation (202) 628-4888 i
I ! DONOVAN - CROSS 18446 ('~} 1 therefore, your answer is that you have not reviewed certain i i/ m l 2 answers to interrogatories put to the Mass AG and the 3 Commonwealth by the Staff? 4 A (Donovan) No. I have not. 5 Q So therefore you're not familiar, for example, 6 with equipment lists and other empirical information 7 concerning the state of the Commonwealth's preparedness? 8 A (Donovan) No. 9 Q Have you made an effort to obtain and review 10 publicly available information about the state of emergency 11 preparedness in the Commonwealth? 12 A (Donovan) It was not my job to do so. 13 Q The answer is, no, then? Right? r (\ u' f 14 A (Donovan) No. 15 Q What's your basis for forming the judgment that 16 under conditions of Mode 1 the response that would actually 17 take place provides a reasonable assurance of adequate 18 protection? , j 19 A (Donovan) You said I could make whatever l 1 20 assumptions I want to make. I want to quantify that. That 21 was your last question to me. I could make whatever 22 assumptions I want to make in Mode 1. 23 0 Yes. About Mode 1. I said, make whatever 24 assumptions you make and however you understand it. 25 A (Donovan) Okay. On that basis I want to answer
/'%
(_,/ Heritage Reporting Corporation (202) 628-4888
v q DONOVAN - CROSS 18447 l
/~N 1 the question. May I?
U 2 Q Sure. J 3 A (Donovan) Assuming then that the state would I
-4 follow the guidance that.would be offered by the NHY ORO j i
5 offsite response organization as to what actions to take and j i 6 at what time to take those actions. I 7 Q Let's hold that assumption out of the picture for 1 8 a moment. 9 Assuming that I don't permit you the assumption 10 that the Commonwealth's actions would follow the advice and 11 assistance of the various ORO liaison personnel. Setting 12 that assumption aside. j 13 Have you formed a judgment as to whether there () 14 would be reasonable assurance? 15 (Long Pause.) 16 BY MR. TRAFICONTE: 17 Q Mr. Donovan, it's a fact that you have really -- 18 JUDGE SMITH: Just let him think of the question. 19 MR. DIGNAN: He's obviously formulating an answer. 20 You can see him thinking, Mr. Traficonte. 21 THE WITNESS: (Donovan) It's my expectation that ! 22 the state would do whatever they felt was necessary and 23 expend their best efforts to protect the public health and 24 safety. 25 Now are you asking me to assume that they will Heritage Reporting Corporation (202) 628-4888
\
.I DONOVAN - CROSS 18448
/\ 1 not? They want.to have their citizens suffer?
b 2 JUDGE SMITH: Wait a minute. Wait a minute, Mr. 3 Donovan. I believe that he is asking you to assume it. 4 THE WITNESS: (Donovan) Well, that's what I'm 5 asking him. 6 JUDGE SMITH: I don't think he puts all that color 7 to it. 8 THE WITNESS: (Donovan) That's.why I'm asking the 9 question. . 10 JUDGE SMITH: Just listen. I 11 Now give him the question back. 12 MR. TRAFICONTE: Su e. 13 JUDGE SMITH: And yti2 can accept, even though you () 14 15 don't agree with the assumption, you can accept the modification that he is putting in the question. 16 MR. .DIGNAN: Your Honor, could I just'make a point ) 17 so that I don't have to object. l 18 If the thrust of the question is, that the witness 19 is to assume that the Commonwealth will act in a way . 20 knowingly detrimental'to their. citizens, which is what I j l 21 guess I just heard the witness say and Mr. Traficonte 22 accept. 23 Then that transgresses et._y assumption we're 24 tt;'ing this case on. 25 JUDGE SMITH: The question put to him was: putting O eeae. e-i , co - au n (202) 628-4888
v DONOVAN - CROSS 18449 1 aside for this question the previous stated assumption that 2 the state will look to NHY ORO for guidance in the event of 3 an emergency, putting that aside, then what is your belief 4 as to whether there is reasonable _ assurance under Mode 1. 5 Now if that's a valid premise is another matter. 6 But he's asking the question. You're not objecting. 7 MR. DIGNAN: I'm not objecting to that. question. 8 JUDGE SMITH: Well that was the question. 9 MR. FLYNN: I'm sorry, Your Honor, this is not by 10 way of objection. But I think the paraphrase that you've 11 just stated is a little different from what Mr.-Traficonte 12 asked.- 13 MR. DIGNAN: Well he's going to answer the Judge's [ ( 14 question, so what's the problem? 15 MR. FLYNN: Well he hasn't established yet that he 16 has an opinion. That was Mr. Traficonte's question: do you 17 have a judgment? 18 JUDGE SMITH: I think you better let this cross-19 examination continue. I think as soon as Mr. Donovan 20 understands what the rules of the question are he is 21 perfectly capable of answering. 22 BY MR. TRAFICONTE: 23 Q Mr. Donovan, let me put'it to you this way. 24 Can you make a reasonable assurance finding if you 25 have to guess or conjecture as to what the Commonwealth ! Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18450
/~h 1 vould do?
I 2 (Pause) 3 JUDGE SMITH: You don't-have to agree that you do 4 have to guess and conjecture. You don't have to agree with 5 that.
~
6 THE WITNESS: (Donovan) I would not be able to
, 7 render a recommendation or a judgment without having come 8 parameters. And you' re asking me to make, as I understand 9 it, no assumptions.
10 BY MR. TRAFICONTE: l 11 Q No. The question was a little bit more modest 12 than that. 13 JUDGE SMITH: Let's understand that. This is () 14 15 difficult. Many times expert witnesses and fact witnessec have to accept assumptions in questions as to which they 16 violently disagree. They think they're ridiculous. 17 Nevertheless, under the approach.that lawyers 18 sometime favor, those questions are often appropriate. And 19 in this instance he is going to be allowed to ask it. But 20 you don't have to accept the assumption. 21 You can answer the question and make it clear that 22 you don't accept the premise of the question. 23 MR. DIGNAN: Your Honor, might I respectfully 24 inquire if a question which asks the witness to assume that i 25 they have to guess what the Commonwealth will do is even in 1 Heritage Reporting Corporation (202) 628-4888 t I
l DONOVAN - CROSS 18451 1 order under the emergency planning rule? 2 JUDGE SMITH: Look, we're going to let him make i 3 his point and get on with the hearing. We know what the ' 4 assumptions of the law are. And we know what the 5 assumptions of Supp. 1 are. We know what they are. We got 6 to get on with the hearing. Let him make his point. 7 If the assumption that he's making the witness 8 accept has no plam. in law or in fact, then the question is
;9 without value. The answerLis without value. I understand i
10 that. 11 .But we got to get on and let him make his point 12 and we'll get on with the hearing. I 23 BY MR. TRAFICONTE: 14 ( Q Are you able to make a reasonable assurance 1 15 findings based on conjecture as to what the response 16 organization would do in the event of an emergency? 17 A (Donovan) You're talking now response < 18 organization? 19 Q General? That was a general question. ; 20 Are you personally able to make a judgment as to 21 reasonable assurance based on conjecture? 22 A (Donovan) No. 23 l 24 i. l 25 O Heritage Reporting Corporation (_/ (202) 628-4888 l
DONOVAN - CROSS 18452
-[) 1 Q Do you know, do you have any information, any \ms/ .
2 facts of any kind that would indicate to you what the 3 Commonwealth of Massachusetts would do in the event of an 4 emergency at Seabrook? 5 Facts? Not assumptions,' facts? l A Well to me I don't know the difference 6 (Donovan) 7 between a fact and assumption when you say that the 8 government will exercise its best efforts to protect the 9 public health and safety. 10 Q If you are permitted to assume that the government 11 would exercise best efforts, Mr. Donovan, are you prepared l 12 to make a reasonable assurance finding based on that' 13 assumption? (m) 14 A (Donovan) We're not making a reasonable assurance 15 finding on the government. 16 Q I'm sorry. You are not making a reasonable 17 assurance finding as to the capabilities of the Commonwealth 18 to respond to a Seabrook emergency? 19 A (Donovan) That's correct. 20 Q And yet, isn't your understanding of Mode 1 to be 23 that the Commonwealth responds to a Seabrook emergency and 22 the ORO makes available whatever resources the Commonwealth 23 would request? l 24 Isn't that your understanding of Mode 17. ; 1 I 25 A (Donovan) I defined to you what my understanding l Heritage Reporting Corporation (202) 628-4888
i DONOVAN - CROSS 18453 1 of Mode 1 was a few minutes ago, which is that they would ()) 2 follow the guidance in terms of recommendations and how to 3 implement the plan of NHY ORO offsite response organization. 4 JUDGE SMITH: Is this a good satisfactory time to , 5 take a break? ! 6 MR. TRAFICONTE: o The th'ught crossed my mind. i I 7 Yes. Probably it is. i 8 JUDGE SMITH: All right. Return at 10 after 3:00. 9 (Whereupon, a recess was taken.) 10 MR. TRAFICONTE: Your Honor, as I am essentially 11 at roman numeral V-C. I'm actually two places at the same 12 time. I'm at roman numeral V-C as well as VI-A. 13 BY MR. TRAFICONTE: () 14 Q Mr. Donovan, I would like to return to the modes 15 of implementation. We had a discussion as to Mode 1. l 16 Can you describe for me your understanding of Mode 17 2 partial? 18 A (Donovan) Mode 2 partial is when NHY ORO 19 implements specific authorized actions, supplies, needed , 20 resources, integrates response and to state and local 21 response.
- 22 0 You're familiar, are you not, with Attachment 8 to l
i 23 implementing procedure 2.14? 24 Are you familiar with that attachment? 25 A (Donovan) I believe I am. Heritage Reporting Corporation (202) 628-4888
l DONOVAN - CROSS 18454 ['hi 1 Q Do you have a copy of the plan procedures volume V 2 available to you? 3 A (Donovan) Well there's one other there if you 4 want me.to get it. 5 Q Could you turn to that attachment. 6 (Witness retrieves Attachment 8.) 7 BY MR. TRAFICONTE: 8 Q :Now, Mr. Donovan, do you have Attachment 8 9 available to ydu? 10 A (Donovan) Yes. I do. 11 Q Can you explain to us what'your understanding of , 12 this attachment is? 13 A (Donovan) I'll take a second -- () 14 15 JUDGE SMITH: How do you identify Attachment 8? MR. TRAFICONTE: It's Attachment 8 to implementing 16 procedure 2.14 which is in the procedures volume Applicants' 17 Exhibit 42. l 18 It's entitled: " Emergency Responsibility 19 ' Checklist." 20 THE WITNESS: (Donovan) Do you want me to 21 proceed? 22 BY MR. TRAFICONTE: 23 Q I just want to make sure we have located it. 24 Have you had a chance to review it? 25 A (Donovan) Yes. I have. O Heritage Reporting X,,/ Corporation (202) 628-4888
v q
.2L have.
l 3 (Pause) l 4 BY MR. TRAFICONTE: 5 _Q Can you explain your understanding of this j i 6 attachment? 7 Well let me lay the foundation for that. Do you 8 understand this attachment? 1 9 A (Donovan) Yes, I~do. 10 0 What is your understanding of this. attachment? 11 A (Donovan) This-is an attachment that is used
, 12 either in a Mode 2 full response or a Mode 2 partial 13 : response.
() 14 15 Q That I believe is -- that's. clear. I would like you to' explain to me how this 16 document would be used in a Mode 2 partial response? 17 A (Donovan) This document is a status report that j L i 18 'is used to brief the offsite response' director.on the status ., 19 of responses.
]
20 It is -- there is a parallel document which is 21 Attachment 7 which is the legal authority document. And the 22 two documents are to be used together. 23 And to get to this level the state would have 24 authorized the ORO response organization to implement 25 certain things. And so they would be implementing other
) Heritage Reporting Corporation i (202) 628-4888 l
s
m i^ L i DONOVAN - CROSS 18456 l () V 1- things above and beyond and those things are'whatever. 2 Thore's a number of response actions. g 3 These two forms would be filled out and are used 4 to brief the ORO response director on the status of 1 5 response. So they're a status report. Juud information 6 report. A management information report process. ] 7 Q Now, do you think it's a fair characterization of 8 Mode 2 partial -- and I would like to direct your attention j I 9 to this attachment -- is it a fair characterization of Mode j i 10 2 partial that any number of.the items under the " function"' f 1 11 heading on this attachment and there are some 10 of them, i 12 any one of these items could be delegated at various 13 jurisdictional levels as between the ORO and either the () 14 state or local government. 15 Is that a fair statement? 16 A (Donovan) Well I wouldn't accept it as a fair 17 statement. l 18 The state makes a decision that the state.is going l l 19 to respond or that the state is going to ask ORO to respond. l 20 So informing ORO how they' re going to respond they' re going I 21 to say what functions they want ORO to perform and what ' i 22 functions the state and local governments are going to 23 perform. 24 Q Let's take an example here. t 25 Let's take accident assessment, number four on the Os V' Heritage Reporting Corporation (202) 628-4888
y DONOVAN - CROSS 18457 [ , 1 function access. Do you see that?
\m/
2 A (Donovan) Yes. 3 Q And then running across on accident assessment 4 there are a series of boxes. The first two boxes " Mass 5 ORO," the second -- and I'm talking about vertical, vertical 6 columns actually. The second vertical column of the set is 7 "Amesbury NHY ORO," and so on. Do you see that? 8 A (Donovan) Yes, I do. 9 Q _Now isn't it the intent of Mode 2 partial to 10 permit, for example, with regard to accident assessment any l 11 number of possible distributions, if you will, of primary l 1 12 responsibility and supporting responsibility as to each of 13 these functions? n (v ) 14 A (Donovan) No. Not as I understand it. 15 Q That is not the intent of this document? 16 A (Donovan) Again, the state authorizes ORO to 17 perform certain functions. Once that's done this page that 18 you're referring to is automatically filled out as, ORO is 19 going to de this, the state is going to do that. 20 0 I have no dispute with that. 21 What I'm asking you is, what range of possible 22 distributions? 23 A (Donovan) Well in the particular example -- 24 Q Let me just finish that question. I think your 25 answer probably will be responsive.
/o.
(,) Heritage Reporting Corporation (202) 628-4888
.v l
DONOVAN - CROSS 18458 . I . (~'S[ 1 This maps out, does it not, the range of possible
\~sl ,
2 distributions as to function and legal authority according l
)
3 to both function and jurisdiction. That's the purpose of. 1 1 4 this'docunent? 5 A (Donovan) No. This document is just on the :l l 6 responsibility only. I already told you there's a separate j 7 attachment that deals with legal authority._ It's Attachment ;] 8 7 deals with the. legal authority checklist. 9 And Attachment 8 deals with the responsibility ! 10 checklist which is different than legal authority. 11 Q Now, Mr. Donovan, let's take another look at this 12 attachment. 13 Do you see at the bottom it says: " Complete each 14 ( ). line on list with one of the following." 15 Do you see that? 16 A (Donovan) Yes, I do. 17 Q PE stands for primary responsibility and "S" I 18 stands for supporting with resources. Do you see that? j 19 Now, take a look at function line 4-A: " Accident 20 assessment plume exposure." 21 Doesn't Mode 2 partial include the possibility 22 that, for example, in the Town of Merrimac primary! 23 responsibility.for that function might be. allocated to ORO, 24 while at the same time in the Town of Newbury primary 25 responsibility might'be allocated to the local. government, Heritage Reporting Corporation-(202) 628-4888
l DONOVAN.- CROSS 18459
', 1 while at the same time and so on.
2 Isn't this a matrix:for the possible allocations 3 of function'and jurisdiction?
~
4 A -(Donovan) The latter part of yourJquestion I will 5 agree with. But T won't agree with the hypothervis.- 6 It is a matrix. But in all cases it doesn't go 7 clear across.the' matrix. Some functions are'only doneLat 8 the state level. So tofsay.that they're done at the. town l 9 level was-a' misstatement.
. 1 10 Any example you. picked'is a function that is done H l
11 at the state level and not done at the' community: level. 12 Q Can you indicate to me one of the functions that
]
13 is done at the local level? I () 14 15-7-C, would that be a good example of an activity that is done at the local level? l 16 A (Donovan)' No. I would say 7-K. l l 17 Q I'm sorry, 7 what? , 1 18 A (Donovan) 7-K; 7-L. 19 Q A11'right, let's stay with 7-K. j 20 Now as to 7-K Mode.2 partial contemplates, does it 21 not, any number of possible permeations.as to'the j 22- distribution of responsibility for that function? 23 A (Donovan) That's correct. 24 Q Now have you formed the judgment, Mr.' Donovan, 25 that Mode 2 partial understood in that fashion if the SPMC Heritage Reporting Corporation (202) 628-4888
+ ,
t ,)
DONOVAN - CROSS 18460 1 were implemented in this form that there is reasonable 2 assurance that adequate protective measures can and will be 3 taken? 4 A (Donovan) Mode 2 partial SPMC is implemented. 5 All parties are implementing SPMC. The answer is, yes. 6 Q When you say, all parties, are you again assuming 7 that the Commonwealth is in some fashion following-the'SPMC? 8 A (Donovan) I'm not assuming, you said-it. You 9 said the SPMC is being implemented. 10 Q Yes. Mode'2 partial? 11 A _( Donovan) Well, that means that all parties are 12 implementing the SPMC. 13 0 Yes. Mode 2 partial meaning that the Commonwealth () 14 has remained -- strike that -- has retained command and 15 control over certain functions and delegated certain other 16 functions to the ORO; correct? 17 A (Donovan) Yes. , l 18 Q So with that assumption in mind, have you formed j 19 the judgment that implemented in that fashion there is 20 reasonable assurance of adequate protective measures? 21 A (Donovan) Assuming the SPMC is being implemented. 22 Assuming they're extending their best efforts to protect the 23 public health and safety. Yes. ! 24' Q Well again, you seem to be running back at me with 25 the same assumption that I'm putting on to you. Is there j Heritage Reporting Corporation (202) 628-4888
Ev j DONOVAN - CROSS 18461
/N 1 something hidden in your statement that assuming the SPMC is V 2 being implemented?
3 My question is, assume it's implemented in the 1 4 Mode 2 partial? Assume that. I want to know have you and 2 5 FEMA formed the judgment that that' mode of implementation is 6 adequate? 7 A (Donovan) I answered your question. 8 Q The answer is, yes, then. j l 9 Let's take 7-K, Mr. Donovan, and let's assume that 1 10 at the time of the emergency we're in~a Mode 2 partial 11 implementation mode. -And that responsibility, primary 12 responsibility has been delegated to.the ORO for the Towns 13 of Amesbury and Merrimac. ;
<x J
( 14 Do you see that? I see that. I mean, I'm
)
15- referring to Attachment number 8 and I'm on that line. And 16- I'm imagining that as the emergency unfolds the primary 1 17 responsibility is delegated for those two towns. 18 The primary responsibility for all the other towns 19 has been retained by the Commonwealth. That's my running i 20 assumption here. 21 Now if that were to occur have you formed the 22 judgment that the traffic and access control function would ( 23 be adequately implemented?~ 24 A (Donovan) Back to your earlier statement that you 25 had in your earlier question that you didn't put in this 1
) Heritage Reporting Corporation (202) 628-4888 L
DONOVAN - CROSS 18462 l U ('N 1 one. l '\ ,] l 2- Q Right.
' Assuming they're implementing the SPMC, 3 A. '(Donovan) 4 therefore the traffic management plan as called for in 5 Appendix J is being implemented.
6 0 -That's why I used an example.because I think there 7 was a disconnect here. 8 Is it your testimony then that your assumption 9 would be that as to those jurisdictions where the 1 l 10 Commonwealth has retained command and control over 7-K that I 11 the Commonwealth itself is following the same traffic 1 12 management plan as the ORO. Is that the assumption that you i i 13 make? eg A (j 14 (Donovan) Well you've been askingEme a series of 15 hypothetical questions. You have asked me to make certain 16 assumptions. And as long as we're. making these hypothetical 17 questions and these hypothetical assumptions, as an 18 individual the answer is, yes. 19 Q What is the basis that you have for assuming that 20 -- as I just outlined one of-the modes of implementation 21 with regard to 7-K that the Commonwealth in those 22 jurisdictions where it has retained command and centrol.over 23 that function would follow the traffic management plan in 24 the SPMC? 25 A (Donovan) Because I was allowed to make the O. V Heritage Reporting Corporation (202) 628-4888
m DONOVAN - CROSS 18463 (~ 1 assumption that they're going to implement the SPMC.
~'
2 O Yes. You're allowed to make the assumption that 3 they're going to. implement it in the form of Mode 2 partial 4 by delegating authority in two towns to the ORO and by l 5 retaining authority over traffic management in the'four 6 other towns. 7 I now what to know, you apparently are also 8 assuming that in the four other towns the Commonwealth will 1 l k 9 follow the traffic management plan in the SPMC; correct? 10 A (Donovan) That's correct. 11 Q And what's the basis for that assumption? 12 MR. FLYNN: Mr. Traficonte, haven't you asked him 13 to assume that in your question? () 14 15 MR. TRAFICONTE: No. I very carefully tried to distinguish between the assumption-that Mode 2 partial is 16 being followed by a partial delegation of authority in two 17 towns and the retention of command and control in the other 18 towns. 19 I'm now trying to press the witness as to what it ') 20 means in his mind for the Commonwealth to retain command and 21 control in those other towns. 1 22 MR. FLYNN: Well I suggest the question is not 23 clear. 24 What you're saying then.that the assumption.which 25 you have asked the witness to make that Mode 2 will be Heritage Reporting Corporation (202) 628-4888 l i __.__---.-___O
- DONOVAN - CROSS 18464
(~'i 1 implemented, Mode 2 of the SPMC will be implemented does not V 2 necessarily mean that the Commonwealth will follow the SPMC? 3 MR. TRAFICONTE: I don't think the question is 4 unclear, Your Honor. I would like to just direct it to the 5 witness. 6 MR. FLYNN: They'll implement the plan but they 7 'will follow some'other plan, that seems to be what you're 8 saying. 9 MR. TRAFICONTE: Mr. Flynn, Mode 2 partial is a 10 mode of. implementation whereby. partial authority is 11 delegated to the ORO and command and control is retained by 1 12 the Commonwealth. 13 I'm trying to press the witness on what l A 14 assumptions he has made as to what the Commonwealth does as
!V) 15 to those functions where it has retained jurisdiction.
16 MR. FLYNN: Have I misunderstood the. question? 17 MR. TRAFICONTE: I'm not sure that itself is a l 18 relevant question, Your Honor. 19 I would actually like to get the witness -- l 20 MR. FLYNN: I suggest that the witness understood ' 21 it the same way that I did. 22 JUDGE SMITH: Is there a question before him now? 23 MR. TRAFICONTE: Yes, there is. 24 JUDGE SMITH: Do you know what the question is? 25 MR. DIGNANs Your Honor, could I respectfully Heritage Reporting Corporation (202) 628-4888 '
q t DONOVAN - CROSS 18465 1 inquire. Is the hypothesis that the Commonwealth has 2 retained command and control but is not following the SPMC 3 in those towns. Is that the question? l 4 JUDGE SMITH: No. There's no hypotheses. He has 5 asked him to come up with what the assumptions are. 6 MR. TRAFICONTE: Your Honor, the plan -- I'm going 7 to say this probably more than once and I know I've;said it 8 'a couple times today already. 1 9 The plan has three modes. It can be implemented 10 in a variety of ways. Therefore the Commonwealth can be 11 said to follow it in a variety of ways. ; 12 One way is Mode 1. One way is Mode 2 partial. 13 And one way is Mode 2 full. () 14 JUDGE SMITH: And I think that's essentially a l 15 play on words. And that's the same play on words that you 16 have used ever since we started talking about these various , 17 modes. l 18 MR. TRAFICONTE: That's a play on words, Your 19 Honor? 20 JUDGE SMITH: Yes, play on words. 21 MR. TRAFICONTE: Those are the modes of 22 implementation which is the plan that is being proposed. 23 If they all mean the same thing, if they all mean 24 that legal delegation or legal authority is delegated. 25 JUDGE SMITH: I don't have any trouble O V Heritagt Reporting Corporation (202) 628-4888 _ _ - _ _ - _ _ _ _ _ _ _ i
1 l DONOVAN - CROSS 18466 l 1 understanding it. 2 MR. DIGNAN: Well, that puts Your Honor as you 3 usually are well ahead of me. Because what~I don't 4 understand is how it's relevant to ask this witness a 5 question about what will happen or what are you assuming I
}
l 6 other than, which I thought I heard the witness say in- i j 7 answer to every one of these questions, I'm assuming as I 8 tell you that I see reasonable assurance that the plan is 9 being implemented. That is to say,.whatever mode we are in 10 both the ORO and the Commonwealth are following the plan i' 11 which he has passed upon. 12 He has not purported to pass upon the wisdom or 13 unwisdom of some other plan that the Commonwealth might be b\
\-)
14 following. l 15 That's my point on relevancy here. The witness is 16 testifying that if everybody follows this plan in whatever 17 mode, as I heard him, he believes there's reasonable 18 assurance. 19 He is not purporting to testify as to what goes on 20 if the Commonwealth has some other plan in their back pocket 21 that they're following in all part of the region. 22 And any questions directed at him on that question ! 23 seems to me irrelevant. ; 24 MR. FLYNN: Mr. Dignan has made my point better 25 than I did myself. Yes. O i U Heritage Reporting Corporation (202) 620-4888
.a DONOVAN - CROSS 18467
[i 1 .The question seems to assume that by retaining. A
\ ,)
2 command and' control the. Commonwealth could choose lu) follow 3 some plan other than the SPMC but still be within mixed Mode 3 4 2 or whatever mode'we're talking about. , l
, 5 And he seems to be asking the witness, do you have I 1
6 an opinion about'how well the Commonwealth would do if it 7 follows some other plan. ; l 8 JUDGE SMITH: No, that's not what he asked him. 9 He said what do you assume that the Commonwealth will do' l l 10 with respect to those other communities. l 1 11 MR. FLYNN: Well, then the. point of the question I i 12 is will they follow SPMC to the last detail or will they 13 only maintain command and control and do something else. r. b) e 14 JUDGE SMITH: I don't know what the point of the 15 question is. But he can answer the question. I 16 BY MR. TRAFICONTE: 17 Q Mr. Donovan, have you inquired as to whether I 18 Massachusetts responders are familiar with the'SPMC? 19 A (Donovan) I have answered earlier that I have 20 not -- 21 Q So you don't knew. 22 A (Donovan) -- evaluated or -- l 23 MR. DIGNAN: Could he finish his answer. L 24 THE WITNESS: (Donovan) -- inquire of 25 nonparticipating governments. It is FEMA's policy that (202) 628-4888 i
y- __ -- DONOVAN - CROSS 18468 [)
%/ .
1 emergency planning is an interrelational effort. The State 2 of Massachusetts has made us very clear where their posture 3 is. 4 My policy that my agency prescribed is when we 5 come in and evaluate a plan for offsite preparedness, when 6 there are nonparticipating governments we are not going to 7 make conjectures, guesses, whatever on what they have or 8 what they will do. 1 l 9 BY MR. TRAFIcANTE: 10 Q Haven't you just made the conjecture and haven't 11 you just testified that you're going to be assuming that 12 they will be implementing in a Mode 2 partial in those areas 13 where they have retained jurisdiction? () 14 Haven't you assumed they're going to be 15 implementing the SPMC's own traffic management plan? 16 A (Donovan) I answered your hypothetical questions j 17 with assumptions in that context. Yes. I'said I assumed 18 they would be implementing the plan. 19 20 21 22 23 24 ( 25 O)- ( Heritage Reporting Corporation (202) 628-4888
DONOVAN - OROSS 18469 1 Q You have formed a judgment that in Mode 2 partial 2 the plan could be .mplemented and provide reasonable 3 assurance, have you not? 4 MR. FLYNN: Mr. Traficonte, the witness has tried 5 to tell you several times that he understood you to be 6 asking him to assume that. 7 MR. TRAFICONTE: No, Mr. Flynn, that's just 8 obfuscation. 9 BY MR. TRAFICONTE: 10 0 Let's go back and nail that down. 11 Have you made a reasonable assurance finding that 12 as to an implementation of mode Mode 2 partial the SPMC 13 provides reasonable assurance? - 14 A (Donovan) If they are implementing the SPMC, the 15 answer is yes. 16 Q Okay. And by implementing the SPMC, you mean if 17 you are permitted to assume that the commonwealth 18 responders, as to the jurisdictions where they retain 19 command and control, if you are permitted to assume that 20 they follow the details, for example, in the traffic 21 management plan of the SPMC7 22 A (Donovan) Well, that's a logical deduction. It's 23 the deduction I made in answering your hypothetical 24 questions. 25 Q Fine. Heritage Reporting Corporation (202) 628-4888 )
v.- DONOVAN - CROSS 18470
- r 1 Do you have any information one way or the other 2 of whether Massachusetts responders are familiar with'the 3 traffic management plan?
4 A (Donovan) No,.I do not. 5 Q So it is true, is it not, that you are making an 6 assumption of. familarity, and from that assumption you're 7 ' concluding that, as to the areas where they retain command 8 and control, the commonwealth would implement the SPMC7 9 MR. DIGNAN: I object. I thought we had settled 10 that the law of the case was that when and if Seabrook is 11 licensed, that Massachusetts, as part.of the realism i i 12 doctrine, will become familiar with the plan. I. thought j l 13 that was settled as the law of this case.. d () 14 15 that. JUDGE SMITH: Mr. Traficonte has not accepted 16 MR. DIGNAN: Well, I know he hasn't. I know he 1 l 17 hasn't accepted it. l
)
18 MR. TRAFICONTE: ~ That among other -- 19 JUDGE SMITH: Isn't there a more. direct way you 20 can make your point, Mr. Traficonte? 21 MR. TRAFICONTE: Your Honor, if I do -- 22 JUDGE SMITH: Do you have to get the-witness to 23 agree to every last, little premise that the commonwealth is 24 reserving for its argument? 25 MR. TRAFICONTE: Your Honor, if I knew a more Heritage Reporting Corporation (202) 628-4888
i 18471 DONOVAN - CROSS 1 direct way and I could be clever about'it, I would be.
'bY 2 JUDGE SMITH: He's made no' assumptions about the < 3 state of readiness of the commonwealth.
4- MR. TRAFICONTE: But he has made the assumption. 5 that the commonwealth -- 6 JUDGE SMITH: Would follow the plan. 7 MR.-TRAFICONTE: -- would follow the plan, and- . 8 therefore be familiar with it. 9 JUDGE SMITH: That's right. 10 MR.'TRAFICONTE: Right. 11 BY MR. TRAFICONTE:
.12 Q Mr. Donovan, if you were not permitted the 13 assumption that the commonwealth responders were familiar
() 14 15 with the details of.the SPMC at the time of the emergency, _ could you make the judgment that there would be reasonable 16 assurance in Mode 2 partial? 17 A (Donovan) I had answered and said earlier that ! 18 SPMC organization has designated certain people to 19 facilitate the implementation of the SPMC. These people are 20 prepared to explain, to show nonparticipating governments 21 how to implement their portion - those. chose or choose to
-22 be,.as we have been questioned : a number of minutes, on 23 either Mode 2 partial or Mode 1.
24 And FEMA based its finding on the premise that 25 these people would be doing their job and explaining to the Heritage Reporting. Corporation (202) 628-4888 u-_ _ _ _ ___ - _ = _ --_-_ ---- - -_---_ _ ---- - - - - - - _----_ -- - - - - - - - - - - - - - - _ . - - - _ - - - _ - _ - - - - - - _ - _ _ _ _ _ _
~
DONOVAN - CROSS 184721
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1 nonparticipating state and local' governments how the plan 2 should be implemented, and that-the state and local 3 governments will exercise ~their faith.and effort to protect-4 the public health and safety.
- 5. Q Did you or did you not, in forming your judgment, 6, that Mode 2 partial could be successfully implemented - did 7 you or-did you not assume that at the time of the. emergency-
- 8. the Massachusetts responders are familiar with the SPMC?-
9 A (Donovan) I assumed they would exercise their 10 best efforts to protect the public health'and safety, 11 Q I understand you made the best. efforts assumption. 12 A (Donovan) And in doing so, they would' listen to l 13 the liaisons.who would be explaining to them'how to 14 implement the plan. And when'they chose to' implement that t( ) 15 portion of.the plan themselves, that they would-follow the 16 premise laid cut in the plan. 17 Q Fine. So is it a fair statement that you.did not 18 assume prior familiarity with the plan? 19 A (Donovan) I said earlier I didn't make any 20 conjecture as to what their knowledge or their basis was. 21 Q Fine. That's fine. 22 Did'you assume, or did you evaluate the liaison l 23 personnel in terms of their capacity at the time of the l [ 24 emergency to communicate to the Massachusetts responders the 25 details in the SPMC? l l
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l y1 Heritage Reporting Corporation (202) 628-4888 _ ______ -_ -__ __ 2
y I 1 l 18473. DONOVAN --CROSS i
.\
[' 1 A (Donovan) First of all, this is an exercise 2 question. So I would like the record to show that. J i 3 But, yes, we did. We did evaluate their ; 4 capabilities to explain. We evaluated it at several l l 5 locations and at multiple levels: from the public 6 information level to the director's level, to the accident ] 7 assessment level, to the individual communications, to the 8 individual communities, to the line where we interviewed all 9 the access control people that went out to the 55 access ) 10 control' points in the field, or traffic control points, that l l 11 their ability to explain to local or state law enforcement : f' I i 12 people the purpose of this particular traffic or access- - 13 control point and how to achieve their function, o g 14 And we found that to be adequate,and so reported 1 15 it in our exercise report on our Objective 37. 16 Q Now, Mr. Donovan, you are an author of. Supplement l 17 1, are you not? ] 18 MR. DIGNAN: Thatta the third time you've asked 19 him that, John. 20 THE WITNESS: (Donovan) I believe my narae's on l 21 the cover. l 22 MR. DIGNAN: And he said three times. He sure is. 23 MR. TRAFICONTE: 'It sure is. 24 THE WITNESS: (Donovan) I attest to be the same 25 individual. Heritaga Reporting Corporation l' (202) 628-4888
i I DONOVAN - CROSS 18474 . 1 MR. TRAFICONTE: It sure is on the cover. I 2 JUDGE SMITH: It's still there. ! 3 MR. TRAFICONTE: It's still there. 1 l 4 (Laughter) 1 5 BY MR. TRAFICONTE: 6 Q I'd like to ask you to turn to -- if I could have 7 a moment. I can't seem to find it. 8 (Pause. ) 9 BY MR. TRAFICONTE: l. 10 'O Yes, if.you would turn to page 2 of that document. 11 I have the promulgated version, November, I believe, 19t3 -- ) 12 September 1988. Sorry. If you could turn to page 2 of that 13 document, 14 Do you have that? 15 A (Donovan) Yes, I do. 16 Q Do you see Section D, Assumptions?- 17 A (Donovan) Yes, I do. 18 Q If you would look at the very bottom of that 19 paragraph, the last line reads, "In accordance with : 20 agreement between the NRC and FEMA, the NRC will defend any ' l l 21 legal challenges to these assumptions." 22 Are you knowledgeable as to what the agreement is ; l l 23 between the NRC and FEMA is in this regard? 24 A (Donovan) No, I'm not. 25 Q Were you privy to any of the discussions at the Heritage Reporting Corporation (202) 628-4888 1
.v DONOVAN - CROSS 18475 1 time the document was drr.fted and promulgated concerning 2 this agreement? ;
1 3 MR. FLYNN: I object to the relevance of this line j l 4 of questioning. The validity of the assumptions is no l l 5 longer an issue in this case. It's also a'res judicata 6 matter. ! l 7 MR. TRAFICONTE: I'm sorry, I didn't hear the last j 8 part. It's res judicata? i 9 MR. FLYNN: Yes. Well, I'm sorry. ! 10 MR. TRAFICONTE: When was there a decision in this 11 case, Mr. Flynn? 1 12 MR. FLYNN: Not in this case, but the validity of 13 the realism assumptions, at least in the NRC rule, have been (em) 14 litigated. 15 (Pause.) l 16 JUDGE SMITH: Are you waiting for a ruling? 17 MR. TRAFICONTE: Yes. He's- objected on the 18 grounds that it's been litigated. 4 19 MR. FLYNN: Yes, of relevancy, i l 20 JUDGE SMITH: Well, I don't'know what the j 1 l 21 relevance of that parti,cular sentence is, but the general
]
22 paragraph is quite relevant. He can inquire about it. 23 MR. FL*tNN: Well, my point is that the validity of i 24 the assumptions is not at issue, and that's where the line 1 25 is going. () Heritage Reporting Corporation (202) 628-4888 i
E m ; I I DONOVAN'- CROSS 18476 t- 1 JUDGE SMITH: The validity of the regulation from . 2 which these assumptions may or may not-have derived is not. . l 3- subject to litigation before us. I don't know where he's 4 going with.it,.but if I were cross-examining, I can think of j i
.5 some questions I might ask about the --
6 MR. FLYNN: I'11 withdraw the objection subject to I I 7 renewal if the question calls for it. 8 BY MR. TRAFICONTE: 9 Q Now, Mr. Donovan, again, are you knowledgeable as 10 to'the nature of the agreement between the NRC and FEMA with 11 regard to these assumptions? 12 A (Donovan) I answered no to your previous 13 question. 14 Q Are you knowledgeable as to which of.the two 15 agencies is the author of these assumptions? l 1C A (Donovan) Yes. 17 Q And which agency is it? 18 A (Donovan) Nuclear Regulatory Commission.
-l 19 Q Are these three a:ssumptions, Mr. Donovan, based on i 20 FEMA knowledge, experience or sxpertise?
21 A (Donovan) When you questioned me earlier on this 22 document, I believe I told you that this paragraph came from 23 the NRC'along with Paragraph H. 24 Q You said came from. I'm sorry. ) 25 A (Donovan) I believe their authorship is by NRC. I O emea. e orum, ce-.u-(202) 628-4888 t I o _ _ _ _ _ _ _ _ _ - _ _ - _ _ _ _ . :i
v f DONOVAN - CROSS 18477
' T j 1 Q I see. Okay, I had understood your earlier \v/
2 testimony that H had come from the NRC, but I may have 3- missed that D did as well. ) i 4 You say come from. You mean the NRC is the author 5 of Paragraph D? 6 A (Donovan) To the best of my. memory. 7 Q Now, Mr. Donovan, is it FEMA's view that it 'is the 8 lead agency for utility planning and utility planning
.9 review?
10 A. (Donovan) Yes. l 11 Wait a minute. Utility planning covers onsite and l 12 offsite. Are you -- would you rephrase your question and 13 put it more -- I \ 14 0 .Yes,'sure.
\ ,/ '
15 Is it FEMA's view that it is the lead agency for l 16 review and evaluation of utility offsite planning? ' 17 A (Donovan) Yes. r 1 18 MR. TRAFICONTE: I woul'2 like to offer at this 19 time a document about which we will have un evidentiary 20- battle. 1
'21 (Document proffered co all parties.)
22 MR. TRAFICONTE: Your Honor, I'd like.to offer 23 this as an admission and specifically I would like to offer 24 a portion of this document. Let me describe what it is 25 first.
]
I (,) Heritage Reporting. Corporation (202) 628-4888 l 1 .
- i. .. ..
DONOVAN - CROSS. 18478 ~[~N' 1 MS. DOUGHTY: Are you marking it as an exhibit?: l 2 MR. TRAFICONTE: Thank you. 3 LeF's, if we could, have this. document in its-
/
4 entirety marked as the next Mass.AG Exhibit for 5- identification No. 62. l 6 (The document referred to was. I 7 ' marked for identification as 8 Mass AG Exhibit'No. 62.) 9 MR. TRAFICONTE: I'd like to offer a port' ion of 10' this document. The document in its entirety is not q 11 necessary, but.I provided.it so its nature couldfbe clear. 12 I would like to offer as an admission by FEMA pages 74.and-l 13 75 of the document which'are found in the back portion'in- 'j 14 the " Analysis'of Public Comment section. 15 MR. FLYNN: I object. 16 MR. TRAFICONTE: Well, let: me'just' finish my 17 proffer first. I just want to direct everyane's attention. 18 -to what it is I would like to have admittsc. 19 I would direct the Board's attention to page 75 at 20 the top where it says, " Response", and then there is a 21 bracketed " FEMA to respond", which has been deleted. And 22 the next two sentences which are underlined, which read, 23 " FEMA leadership responsibilities in regard to offsite 24 planning' extends to offsite planning of state and local i 25 governments. In the case of offsite planning by utilities, Her3tage Reporting Corporation j (202)'628-4888- l ___._.___________li.-
m DONOVAN - CROSS 18479 11 NRC .has the: lead and ~ FEMA's role is one of cooperating with 2 -the-NRC."' 3 I would'like.that. response and the publiv csmment
- 4. '. to'which it.is responsive admitted into evidence as an :
j
- 5. admission by FEMA that FEMA does not consider itself the j i
.6- lead agency when it comes to the review of the utility 7 . offsite: planning.
'8 I'm through. I know I'm going to have to explain. -
9 . what this is. I 1
. 10 MR. DIGNAN: I object for a very simple reason. ] l 11 What you are contesting is the Appeal Board's ruling; is )
l 12 .that right? 13 MR. TRAFICONTE: I'm sorry? () 14 15 ruling? MR. DIGNAN: -Is.this to contest the Appeal Board 16 MR. TRAFICONTE: No , this' runs to the weight to be 17 given to the FEMA presumption of adequacy. 18 MR. FLYNN: I object to the admission of the 19 documents. 20 MR. DIGNAN: Well, first of all, before you do, 21 Mr. Flynn, can I find out what the document is? 22 MR. TRAFICONTE: Yes. 23 MR. DIGNAN: I mean the witness hasn't identified' 24 it. Maybe he can. , 25 MR. TRAFICONTE: He might be able to, in fact. rD U Heritage Reporting Corporation (202) 628-4888-9
- _ . - _ _ _ . _ _ . . _ _ _ .l._.___ _ 2_._ ._ E - . _ _ .
d DONOVAN - CROSS 18480 (\ _ 1 MR. DIGNAN: Well, I'll tell you if he can't, I'm ,
\ ,) !
2 going to object on that ground alone. I want to know what 3 I'm dealing with here. 4 MR. FLYNN: I don't know either. I have not seen 5 this before, although Mr. Traficonte did describe it to me 6 before. I don't know wrather this is authentic- . I don't -- 7 MR. DIGNAN: Before we get into a shootout,.Your 8 Honor, on the question of whether they are FEMA admissions 9 or are admissions or what, could we have the document 10 identified in the normal course of the hearing and go from 11 there? Because right now it stands as a piece of paper i
.1 12 marked for identification which no one has identified. i 13 MR. TRAFICONTE: I would like to proceed as-() 14 15 follows. There may be any number of objections.
objection which I am prepared to respond to is the One 16 authentication problem. 17 Let me first explain for the record what this 18 document is. 19 MR. DIGNAN: No , I want this one done right, Your 20 Honor. Not some lawyer saying, I'm telling you what it is l 21 and now I'm offering it. I want it put in in the normal way f 22 before we get to this very technical shootout here on what 23 is and is not an admission by a federal agency.- The last j q
^4 time I went down this pike federal agencies never make 25 admissions anyway.
) Heritage Reporting Corporation (202) 628-4888
_m_____m-
w DONOVAN - CROSS 18481 1 But'before we get to that, could'we have it come, 2 in under some rule of. evidence-that I recognize as to-3 authenticity and relevancy? And right now I've got neither. 4- MR. TRAFICONTE: As I said, I anticipated an 5 objection as to authenticity.. And if need be,.I would 6 request that a subpoena issue,.and I would make the 7 appropriate offer as proof as.to who the individual who 8 should be subpoenaed is. I'm hoping we can overcome the 9 authenticity struggle here. 10 As to relevance, I think I've stated that we. 11 believe it's relevant as an admission by FEMA that FEMA 12 doesn't consider itself the lead agency which runs to the 13 weight to be given to the presumption. ( 14 As to authenticity,'I think it's appropriate for 15 me to -- I have no other way of attempting.to get'the 16 document in evidence at this juncture but for me to' state l 17 the terms and conditions under which it came into my 18 possession. 19 I will say, Your Honor, if the parties continue to 20 push their authentication objection, my understanding of the l 21 Rules of Evidence are that I would move'for the issuance of I 22 a subpoena, or I would request that the Board issue a 23 subpoena to an individual who could authenticate the 24 document. EIt is not self-authenticating. 25 JUDGE SMITH: That's going to be resolved. You 1 (,j/ Heritage Reporting Corporation (202) 628-4888 L
e DONOVAN - CROSS 18482
-1 are not going to have'to do that.
2 MR. TRAFICONTE: Right. 3 JUDGE SMITH: They are going to work that out for 4 you. MR..TRAFICONTE: 5 Let me state now what the , 6 document is, if I could. 7 The document is a' copy of a memorandum which 8 appears as the second page after the facsimile transmittal 9 request sheet, which is-page No. 1. And accompanying the 10 memorandum is a seven-page markup of the introductory 11 sections of NUREG Supplement No. 1, followed by-an entire 12 copy of Supplement No. 1, followed by an.89 page document 13 numbered pages, the first'page of which is-entitled
~
14 " Analysis of Comments". 15 And I believe what we have here is a.-- l 16 JUDGE SMITH: What's the final page of Supp. 17 17 MR. TRAFICONTE: Thirty-one, Your Honor. 18 Again for the record, I'm not offering the -- I 19 would never be offering it for its entirety. But I think 20 it's clear it's helpful to see'the whole document. 21 I believe'that what this represents, at least the 22 pages that I would like to have admitted, represent FEMA's 23 comments provided to the'NRC in response to certain public 1 L 24- comments submitted at the time that Supplement 1 was' noticed 25 in the' Federal Register as a proposed criteria document,fand Heritage Reporting Corporation 7 -(202) 628-4888 if 4
DONOVAN - CROSS 18483
.W
(~T 1 -- that the public drafted and sent in written comment. -{
\~sl l 2 MR. FLYNN:. Your Honor, that's.not -- 1 1
3 MR. DIGNAN: Mr. Traficonte, could I point out 4 that the' entire document, this comment document that you 5 referred to, if you go to the first page thereof, it starts 6 out, " Comment No. 1, Ohio Citizens for Responsible Energy". 7 And as I read this document, and I've seen some of these 8 kinds of documents, this is somebody probably at NRC picking 9 off various people's comments, because this is the Ohio l l 10 Citizens for Responsible Energy comment, and there is a 11 response drafted to that. This isn't a FEMA comment. This . 1 12 is detailing what they are doing with a number of people's 13 comments. [)
%/
14 And I really do challenge, and I don't do this out 15 of not trusting your word or your honest belief in what you 1 16 just said, but I do challenge that this is a FEMA document. I 17 I may be wrong but I've been given -- l 18 JUDGE SMITH: No, it's not a FEMA document. 19 MR. DIGNAN: No, or that they are FEMA. comments. 20 This is my point,.Your Honor. And I'm not doing this just 21 to be difficult, and 7 have no desire to have you subpoena 22 any given witness. But I have information that these are 23 not FEMA comments, but rather, are NRC comments directed at 24 various comments given to NRC about this' document. 25 MR. TRAFICONTE: Your Honor, they are both. If 4 O h . Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18484 1 you would turn to pages 73, 74 and 75 in the. Analysis of Comment section. ' ~ 2 { 3 MR. DIGNAN: I see that. ! l 4 MR. TRAFICONTE: You will find at the top of page ; 5 73 headed " Comment No. 21 (a) . Massachusetts Attorney 6 General James'M. Shannon", and then the beginning of a 7 comment. 8 There then proceeds to be a response. 9 MR. DIGNAN: I'm sorry, John, what page are you 10 on? I
'll MR. TRAFICONTE: I'm now in 73 in the back of the 12 document.
13 MR. DIGNAN: Thank you. () 14 MR.'TRAFICONTE: So that. appears to be a response, l 15 another comment designated (b), and so on. 16 If the Board would turn to page 74, . you will' note k 17 that as to Comment 21(d) , for example, which is set forth on 18 74, there follows a response and in brackets, " FEMA to 19 respond." 20 MR. DIGNAN: It's crossed out. 21 MR. TRAFICONTE: That statement has been crossed 22 out and then there is an underscored sentence next to it. 23 Following that, there is another comment, 21 (e) , ) 24 and at the top of 75 there is the response that I would vory i 25 much-like to have admitted. And my response again follows a- ' /O V Heritage Reporting Corporation (202) 628-4888 l
i DONOVAN - CROSS 18485 I p\. 1 bracketed phrase that says, " FEMA to respond", and that has i l 2 been crossed out. ] 3 Your Honor, and again I certainly don't want to 4 press the issue of a subpoena, but the offer of proof.I 5 make, and I'11 make it now,'is.that the two individuals.who l 6 can shed light on this and establish that the underscored i 1 7 sentence on'page 75 indeed is the stat = ment.by FEMA, ) l l 8 supplied to the NRC, the two individuals who can.shed light l 9 on that are Marshall Sanders representing FEMA, and Edward 10 Podolak representing the NRC. Both names appear on the very . 11 first page of this document, Your Honor, on the fax 1 12 transmittal sheet. 13 It is my understanding, and I would like to j 14 represent that what we have here is we have a draft set of 15 responses to public comment prepared by NRC. That document 16 was passed over to FEMA. At the appropriate places in the 17 document it was indicated to FEMA that it was to. formulate a 18 response. i 19 FEMA representatives did so. They typed their 20 response. It was underscored, and it was provided then 4 21 again back to the NRC individual, Mr. Podolak.
]
I' 22 JUDGE SMITH: But that isn't self-evident. I 23 MR. TRAFICONTE: It is not. That's why I'm making I i 24 an offer of proof. That certainly is not self-evident. l I 25 MR. DIGNAN: Your Honor, before we have a shootout j jq
-V.'
Heritage Reporting Corporation (202) 628-4888 ' I 1 J - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - _ _ _ _ _ _ . _ _ _ _ ._ .l
DONOVAN - CROSS 18486
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1 on authenticity, because I'm sure Mr.-Traficonte would not 2 knowingly misrepresent anything and I'm not concerned about- ' 3 that, could I be enlightened as to what is the' relevancy of 4 this offer?
~
5 You've called it an admission, and I assume _the l 6 admission is that FEMA at some point, at least when they 7 wrote this, assuming they did, didn't think they had the 8 lead. { 9 NR. TRAFICONTE: Your Honor. 3 I 10 MR. DIGNAN: Okay, now let's-assume -- . 1 11 MR. TRAFICONTE: You asked me what the relevance j 12 argument is. 1 13 MR, DIGNAN: No, what I want to -- { () 14 15 MR. TRAFICONTE: argument yourself and -- Do you intend to make the i
)
16 MR. DIGNAN: No, I was going to ask, so you could 17 understand my question, I suggest this to you. 18 Let's assume that that's right. Somebody from l 19 FEMA wrote down that they didn't have the leadership at one 20 point, okay? I don't see how that's relevant. , 21 Now lot's assume that for other ev ' tence reasons 22 you can say, and not only that, but FEMA thougat that-up until yesterday, okay? 24 What is that relevant to in this case? I mean is 25 this an attack on the rebuttable presumption again? Heritage Reporting Corporation (202) 628-4888 __.____.____-..____m
DONOVAN - CROSS 18487 MR. .TRAFICONTE: No. Your Honor, again I would go t
'o )' '%)
1 2 back to the discussion we had last week,.the nature of FEMA 3 in the proceeding.. It's essentially an expert agency. It's 4 functioning as an expert witness, if.you will. And what we 5 are trying to do is -- 6 JUDGE SMITH: It is an expert agency and a 7 policymaking agency. 1 8 MR. TRAFICONTE:- Rand'a policymaking agency, yes. l 9 And this would go to weight. If an expert,-for example, an 10 individual were here and he had a written document that 11 indicated that he did not: consider himself an expert or the 12 lead expert on a matter, that would lend to weight. It 13 would be a -- () 14 MR. DIGNAN: No, no.
- 15. MR. TRAFICONTE: -- form of admission essentially L 16 as to the weight to be given.the expert's opinion. In the I
17 same way FEMA communicated to the NRC, communicated to the 18 NRC that it, FEMA, did not consider itself the lead agency 19 with regard to utility offsite planning. It did so in a 20 written document. 21 We would like to have that statement by FEMA to 22 the NRC admitted in evidence running to the weight to be 23 given in an NRC proceeding to FEMA's witnesses when they - 24 come in with a finding as to the adequacy of the utility 25 plan. That's my only relevance, Your Honor. l') (_/ Heritage Reporting Corporation (202) 628-4888 l i
m DONOVAN - CROSS 18488 I
/h 1 MR. DIGNAN: Then I've got two problems with that \~J' l 2 proffer in terms of relevance. Maybe it's a combination of '
3 relevance and competence. 4 First, to state one has the lead or not the lead 5 with respect to this kind of a subject is not the same as 6 saying whether one considers oneself an expert or not. 7 Lead simply means -- it can mean any number of things as to 8 when you say to an agency you're the lead agency. It does 9 not necessarily mean you'are more expert than the other guy , 10 because you've been made lead. That's point one. 11 So I think he's got to do a lot more questioning 12 to make it relevant on that basis alone, i 13 Secondly, nothing has been said so far, and maybe i c
/'N j 14 there are representations to come on this, that this amounts (N-)
15 to an official position of FEMA as to whether it's the lead 16 agency or not. 17 Now, this witness has testified that FEMA I 18 considers itself the lead witness. At least at this j l 19 juncture we have sitting on the stand the witness designated l 1 20 by FEMA to give the FEMA position here. And certainly a j 21 piece of paper underscored by an unknown to me author -- and j i 22 I'm not playing games. It literally is unknown to me -- l I 23 saying what FEMA's position is, does nothing for it. l 1 24 If you are going to call it an admission of any l l l 25 kind, you have got to get it to be an official position of ! l
/~ !
(,/ Heritage Reporting Corporation j (202) 628-4888 l
v I DONOVAN - CROSS 18489 1 that agency. -You can't go with what some subordinate 2 employee may have sent over to_NRC. And I don't mean that 3 literally. I'm not hanging on the-fact that a subordinate 4 may have written it. But it's got to be' demonstrated-that 5 it had the blessing of a head of the agency before it can be 6 an admission against.the agency, it seems to me, at a 7 minimum. 8 1 9 10 11 12 13 () 14 15 16 17 18 19 20 21 22 23 24 25 \ Heritage Reporting Corporation (202) 628-4888
_7------ . DONOVAN - CROSS 18490 I think we're a long way from
/~}/ 1 MR. DIGNAN:
l 2 admission at this point, Your Honor. I'm not saying he 4 3 can't get it done. But forgetting authenticity'and assuming 4 everything that Mr. Traficonte represented is the facts as l 5 to what this document is, we're an awful long way from 6 admission of it into evidence as an admission of some kind 7 against FEMA as to whether or not it was lead. And we're 8 also way away from it being probative evidence, because we j 9 don't know what that author meant when he said lead here. I 10 do not, at least, equate the word " lead", as my brother did, 11 with the word " expert". 12 I've seen many situations. Let me give an example 13 that gets it out of government entirely. In a major
/^%j 14 lawsuit, the overall lead may be given to one lawyer. This q
15 does not mean that one of the other lawyers in the group is i 16 not the more expert let us say on the tax question, or 17 another more expert on the antitrust question, but that 18 there is one lawyer with the lead. 19 This is true in business. I think it's equally 20 true in government. I do not equate this concept of lead 21 with expert. l l 22 And so I think without more testimony about that l l 23 use of the word " lead" as a synonym for " expert".that Mr. 24 Traficonte just engaged in, I don't think it can be admitted 25 on that ground either. i /~5 (m,) Heritage Reporting Corporation (202) 628-4888 1 s _ _ _ . . _________._________;
F7rS- 1 l DONOVAN - CROSS 18491 l 1 MR. FLYNN: I support the argument that Mr. Dignan 2 just made. We don't know for certain from the document ; 1 3 itself that these are in fact FEMA comments. The flow seems 4 to have been f om the NRC to FEMA. 5 But even if it is the case that someone in FEMA l 6 wrote the words that were underlined, it is obvious from the 7 document that this was a draft. The final version of these 8 comments appeared in the Federal Register notice, and the 9 language for which the document is offered did not appear in 1 10 the Federal Register notice. ] 11 So from the public record, we cannot say that this 12 is a FEMA position. 13 MR. TRAFICONTE: I want to make sure I understand. l () 14 15 JUDGE SMITH: Mrs. Chan has been trying to be recognized. l 16 MS. CHAN: Thank you, Your Honor. 17 I believe maybe if we get this in perspective, 18 that the Itemorandum of Understanding between the FEMA and 19 the NRC decided who would take, or which agency would take 20 the " lead" on certain issues. And under the MOU, I believe 2A all of FEMA's findings had to go through the NRC, so that in 22 that context the NRC was always the lead, even if FEMA was 23 doing the work. 24 MR. TRAFICONTE: Could I just ask for a 25 clarification of that last argument? n k j) Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18492 1 The NRC is always the lead in both the state and 2 local offsite planning situation, as well as the utility 3 offsite planning situation? 4 (Counsel confer.) 5 MS. CHAN: Your Honor, after a moment of 6 consultation, I'm told that under the Memorandum of 7 Understanding FEMA had the lead for offsite emergency 8 planning, to review and assess offsite emergency plans and 9 preparedness for adequacy, and that was under the MOU. 10 But utility plans had to be submitted through the NRC and 11 given to FEMA for review. 12 And under now 44 CFR 352, the situation is 13 different. FEMA can now do the same review as it could for 14 state and local plans. 15 JUDGE SMITH: Would you repeat that last 16 statement? , 17 MS. CHAN: One second. 18 (Counsel confer.) 19 MS. CHAN: Previously under 44 CFR 350, FEMA could 20 assist state and local plans. And now under 44 CFR 352, 21 FEMA can assist the utility-generated plan for the offsite 22 in the same manner as they previously had under 44 CFR 350. 23 This is for state and local. It's the same planning. 24 JUDGE SMITH: And the last regulation, what is 25 that? 3507 Heritage Reporting Corporation (202) 628-4888
" , 1 DONOVAN - CROSS 18493
.1 MS. CHAN: 352, 2 JUDGE SMITH: 352. You believe, in any event,
- 3. follows in time these comments?
4 MS. CHAN: Yes, Your Honor. I have a copy here. 5 It was. noticed in the Federal Register-on February 28,.1989. 6 JUDGE SMITH: .Well, let's let this be a legal 7 issue. I think that Mr. Traficonte should be accommodated. l l 8 The parties should come in here with'information as to who 9 wrote that comment, what was the background behind it, , 10 stipulate that it did or did not appear in the Federal , 11 Register notice, and then bring our attention to the 12 regulation. It's a legal issue. It can all be stipulated, 13 the facts can be stipulated. f) 14 MR. FLYNN: Your Honor, we will certainly abide by 15 the direction of the Board. But I would like to point.out 16 that Marshall Sanders has retired from his employment at the 17 Federal Emergency Management Agency. 18 JUDGE SMITH: Well, that's all right. Somebody 19 will know whether he did that or not. 20 MR. FLYNN: Well, '
-?. find out what I can.
21 JUDGE SMITH: And sw o his authority was. 22 MR. TRAFICONTE: Your Honor, could you also, in 23 this vein, could you also instruct -- as I sympathize with 24 Mr. Flynn in this regard. Could you also instruct the NRC 25 Staff to inquire of Mr. Podolak as to the situation that -- l Heritage Reporting Corporation (202) 628-4888 1 l 1 _____ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ _ _ _ _ __ i
DONOVAN - CROSS 18494 1 JUDGE SMITH: Yes, I expect the cooperation of all 2 of the parties who have information on this to come in with 3 a story of what this is and the whole sequence. 4 MR. TRAFICONTE: Your Honor, I am now on VI~B. 5 MR. DIGNAN: Could I just be sure I understand the 6 status of the record? 7 This has been marked 62 for identification, the 8 document we have just been dircussing, the entire document. 9 An offer has been made of, I believe, it was two specific 10 pages thereof. 11 MR. TRAFICONTE: Yes. 12 MR. DIGNAN: And the Board, as I understand it, is 13 withholding any ruling on the offer until there is 14 clarification as to source and so forth. 15 JUDGE SMITH: I would hope that we never come to 16 the point were 62 is offered into evidence; that there is a 17 stipulation by the parties that on such and such a date 18 Marshall Sanders, if such be the case, wrote, in response to 19 the notice of opportunity to comment on Supp. 1, the 20 following. Those comments did not appear in the Federal 21 Register. In any event, the regulation now provides as 22 follows. If those are undisputed facts, it's a legal 23 question. But we don't need any burdensome evidentiary 24 showing to arrive at that sequence. 25 MR. TRAFICONTE: VI-B, Your Honors. Heritage Reporting Corporation (202) 628-4888
y. DONOVAN - CROSS 18495
/% 1 JUDGE SMITH: But where we are now it's been N~sl b 2 marked for identification. It never was actually offered, I 3 don't believe.
4 MR. TRAFICONTE: I did offer those two pages. Mr. 5 Dignan is correct. I offered pages -- 1 l 6 JUDGE MCCOLLOM: Seventy-four and 75. 7 MR. TRAFICONTE: Seventy-four and 75. I offered 8 those into evidence. i 9 MR. DIGNAN: Actually what you offered is just the 1 10 part that was the comment and the response. 11 MR. TRAFICONTE: I may have then misspoke myself. 12 MR. DIGNAN: On separate pages. 13 MR. TRAFICONTE: Yes. () 14 15 JUDGE SMITH: offer, it is denied. With respect to that particular But you will have to follow through 16 with the -- l 17 MR. TRAFICONTE: Yes. 18 JUDGE SMITH: -- alternative relief that we have 19 ordered. So it's rejected. 20 (The document referred to, 1 l 21 having been previously marked l l 22 for identification as 1 23 Mass AG Exhibit No. 62 l 24 was rejected.) 25 MR. TRAFICONTE: I would like just a minute, Your 73 (_) Heritage Reporting Corporation (202) 628-4888
m DONOVAN - CROSS 18496
/i 1 Honor. I have to find a document.
U 2 (Pause.) 3 BY MR. TRAFICONTE: 4 Q Mr. Donovan, do you have available to you 5 Applicant's Exhibit 43 (a) , which is Mr. Peterson's letter? 6 A (Donovan) No, I don't. 7 Q Well, perhaps you don't -- , 8 MR. DIGNAN: I can give him a copy. 9 MR. TRAFICONTE: Well, okay. I don't know if he 1 10 will be at a disadvantage or not. I have only one. j 11 (Document proffered to the witness.) l 12 THE WITNESS: (Donovan) Thank you. l l 13 BY MR. TRAFICONTE: () 14 15 Q I would like to direct your attention to page 3 of Applicant's Exhibit 43 (a) , and just ask you as to the i 16 present posture of the reasonable assurance finding that 17 your agency has made with regard to the SPMC. 18 Is it a prospective judgment, Mr. Donovan, or has j 19 the agency made a reasonable assurance finding at this point 20 in time? 21 A (Donovan) It's a reasonable assurance finding 1 22 with a condition. 23 Q It's a reasonable assurance finding with a l l 24 condition. ! l 25 And what is the condition? j I (_j
/"] Heritage Reporting Corporation (202) 628-4888
'l l
l DONOVAN - CROSS 18497
~
'l- A' (Donovan) That the vehicle alert notification 2' system ~is installed and operable as defined in their' design' ;
3 report that they submitted to. FEMA, that FEMA has produced 4 an initial review of. 5 Q Now you are generally familiar with the reasonable l 6 assurance finding mechanism, are-you not? 7 A (Donovan) Yes, I am. 8 Q You are not.a lawyer,. but.I thought that was a' j 9 very artful lawyerly answer to my question. 10 Is this reasonable assurance finding.on-condition, 11 is that a standard FEMA practice? 12 A (Donovan) Yes, it is.: If you notice in the above i 13 paragraph, there is a similar statement as well with regard l 14 to the State of New Hampshire's reasonable assurance 15 finding. 16 Q Well, let me put it this way. . 17 Is it a standard practice outside of the Seabrook 18 case? I 19 A (Donovan) Yes. 20 Q You are familiar with other instances where there 21 was essentially a conditional reasonable assurance finding 22 issued? l l 23 A (Donoven) Yes. l 24 Q Can you think of one instance?- l 25 A (Donovan) I can think of two in my region, Trojan O m .g. A run, c.-.en. (202) 628-4888 _ _ _ _ _ - - _ _ - _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ - . _ - _ _ - _ _ _ _ _ - - - _ _ - _ _ _ _ _ _ _ _ __~
v ' DONOVAN - CROSS 18498 (~ 1 and WNP-2. I can think of others in other regions. There U 2 is at 2 east two. 3 Q Now I would like to ask you a series of general 4 questions about the standard that you used in evaluating the 5 SPMC. 6 Do you think it's a fair statement, Mr. Donovan, 7 that you employed a best efforts standard with regard to the 8 level of adequacy provided by the planning activity? , 9 MR. FLYNN: Ask for clarification. What does 10 "best efforts" mean, or what does the question imply that it 11 means? l 12 BY MR. TRAFICONTE: l l 13 Q Well, let me put the question to you this way, Mr. l /% l (ss ) 14 Donovan. 15 Did you assume that, when judging the adequacy of l l' 16 the preparedness, that the site with its inherent l 17 limitations, whatever they might be, is to be accepted as a 18 given, and that essentially the planning standard is to do 19 the best that one can do with regard to preparing an 20 emergency plan in light of those limitations? I 21 A (Donovan) Is your question to FEMA's reasonable 22 assurance finding that you were just referring to ! 23 previously? ,
)
24 Q Yes. l l 25 A (Donovan) Reasonable assurance findings are based ! l (" l (,)/ Heritage Reporting Corporation (202) 628-4888 l 1 i I
v DONOVAN - CROSS 18499 1 on four legs. One is the review of the plan, review of the 2 plan against 0654, Supp. 1. One is a test of the exercise 3 and our evaluation cf that exercise. One is a verification. 4 that the equipment, personnel, resources, et cetera, that 5 are stated in the plan are actually there. And the last is 6 a verification that the people that are identified as 7 emergency responders are trained. 8 And our reasonable assurance finding is built on 9 all four elements and the summation of those. And those are 10 the basis for which FEMA builds and either decides yes or no 11 that the agency will give a reasonable assurance finding. 12 Q Let me give you a hypothetical, Mr. Donovan. 13 Let's imagine that a reactor has been built in Boston [) \_/ 14 Common. Let's just assume it's there, but it is not yet 15 licensed, and you have been assigned as RAC chairman with 16 the unhappy task of reviewing the emergency plans of Mayor 17 Flynn and the City of Boston as well as the Commonwealth. 18 Focusing on that hypothetical, I would like to 19 know would FEMA assume, when it reviews the four legs on 20 which that emergency plan would stand, would FEMA assume 21 that it is to take the demographics, the road network, the 22 inherent limitations of an emergency plan for the inner core l 23 of the metropolitan areas of Boston as a given when it l 24 assesses the adequacy of that plan? l 25 A (Donovan) Yes, I guess we would assume that is a b(,/ Heritage Reporting Corporation (202) 628-4888
I DONOVAN -' CROSS 18500' ] 1 given. 2 Q So again using'my hypothetical, and I hope I can 3 recapitulate your four legs. I may only have a three-legged 4 .one in a minute. But you would review the plan, you would f 5 conduct an exercise, you would critique the training 6 provided to the responders, and I'm sorry, t,he fourth leg 7 was?- 8 A (Donovan) Verify that the resources personnel, 9 equipment, supplies, et cetera, are available. , 10 0- Were available. And having reviewed the four 11 legs, the fact that the plant is located on Boston Common 12 and therefore the site has inherent limitations would not in 13 and of itself prevent FEMA from making a reasonable 14 assurance finding? 15 MR. DIGNAN: I'm going to object to the form of 16 the question. I was doing fine until you said " inherent i 17 limitations". I'm assuming this reactor ha's passed all 18 reactor site and criteria of the NRC, or otherwise it ! 19 wouldn't be there. 1 1 20 MR. TRAFICONTE: Yes, Your Honor, we can assume 21 for the sake of my hypothetical that all of the Part 11 22 reactor siting criteria have been met. 23 MR. DIGNAN: Then I withdraw the objection-on that 24 basis. 25 JUDGE SMITH: And the guy who plays a saxophone Heritage Reporting. Corporation (202) 628-4888 4 L ;
a .. 1 DONOVAN - CROSS 18501 1 over there, he's standing at'the site boundary. There is a 2 fellow that plays the saxophone over there every morning. . 3 MR. .TRAFICONTE: Well, if we want to press on Part 4 100 -- I 5 MR. DIGNAN: He's the fence post dose. 6 MR. TRAFICONTE: If you want to press on.the Part -i l ! 7 100 standards, the Appeal Board has required that the 8 reactor be built, and then a triple or quadruple containment ( 9 be added to pull in the LPZ boundary to'the point where the 10 saxophone player is in fact outside the LPZ. .i 11 JUDGE SMITH: Okay. 12 MR. DIGNAN: He doesn't have to be. 4 I 13 MR. TRAFICONTE: Mr. Dignan doesn't believe he has l ( 14 to be. 15 JUDGE SMITH: .All right, those are the 16 assumptions. 17 BY MR. TRAFICONTE: , i 18 Q Those are the assumptions, Mr. Donovan. l 19 A (Donovan) Yes, it would be possible to come up 20 with a reasonable assurance finding. 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 t _ _ _ _ - _ _ _ _ _ _ _ - _ - _ - - _ _ _ _
DONOVAN - CROSS 18502 I' (T 1 Q Now let me see if I can refine the question a V ' 2 little bit better. 3 Is the test to be applied when you review the four 4 legs of the planning effort, is it your view that the test 5 to be applied is whether or not the planners have made their 6 best effort in regard to the plan and the procedures and the j 7 state of preparedness? 8 A (Donovan) I don't understand the words "best 9 efforts." But this test that we apply is: (a) does the plan 10 meet the plan review criteria in 0654 or 0654 Supp. 3 11 depending on who*3 plan we're reviewing. 12 (b) Can the plan be implemented and can it be 13 iraplemented in a reasonable f ashion? I r~ 14 (c) Are the resources, personnel, equipment, et (N) 15 cetera identified in the plan present and verified that 16 they're there? ) l 17 (d) That the people are trained. I 18 Q Fine. Let's use an example. I think it's always 19 easier with a hypothetical. 20 Let's imagine again that we've got a reactor 21 sitting in the public garden and the planners attempt to 22 staff to the extent necessary, they attempt to staff the j i 23 emergency response organization. 24 'In om- particular however they're unable to i 25 provide 24 hour staffing because they're. unable to find a i i r% i ( Heritage Reporting Corporation (202) 628-4888 l l j l l
. - ]
v DONOVAN - CROSS 18503 ( 1 sufficient number of people. 2 They have come to you for review and they've 3 indicated to you that they have made best efforts at trying 4 to obtain t.he necessary staff, but that they' re unable to do l 5 so. l l 6 Would you judge the shortfall in staff as-a. l-7 deficiency or an inadequacy even if you have also determined. j 8 that they have made a best efforts to fully staff the l l 9 organization? 10 A (Donovan) Well that's a big question. And to put 11 it in context, if it was a position we felt required 24 hour 1 12 staffing we would not consider best efforts good enough. 13 Q So there are certain emergency response positions. () 14 FEMA has established that you need 24 hour staffing, and if 15 a planning effort is under review and it doesn't have the i 16 requisite staffing it's not going to be found adequate? l l 17 A (Donovan) Well that again is a broad statement. 18 The plan would define -- the agency has a 19 perspective on 24 hour staffing in the context of how a plan 20 defines its response functions and the perceived need for l l 21 those response functions. 22 Some response functions don't call for 24 hour 23 staffing or there is a perceived need, then conceivably they 24 would be put in a category not requiring 24 hour staffing. 25 Those that call for 24 hour staffing, then we would look at Heritage FWrorting Corporation (202) 628-4888
l DONOVAN - CROSS 18504 1 it in that context. z Q There are certain positions, are there not, that 3 FEMA requires 24 hour staffing no matter what the emergency ; 1 4 plan establishes as 24 hour requirement; is that correct? 5 A (Donovan) Certain positions, yes. 6 Q Let's focus on one of those positions.
'7 For one of the positions that FEMA requires 24 8 hour staffing, if the utility came -- strike that -- if the 9 planners came to you and said, we've simply been unable.to 10 staff for 24 hours FEMA would find that to be inadequate 11 planning, would it not?
l 12 A (Donovan) Again this is a hypothetical? 13 Q Yes, it's a hypothetical? ) 14 A (Donovan) I would expect we would find the 15 planning inadequate. l 16 Q And any best efforts -- strike that -- let me' 17 withdraw that. You would not wait or consider a plea on the 18 part of the planners that they have made an effort to moet 19 the standard. You wouldn't wait for that. You would say, 20 yes, but you haven't met the standard; correct? 21 A (Donovan) Well again,-in realms of a hypothetical 22 I would certainly listen to whatever rationale or 23 justification they would want to provide. And I would have 24 to look at that versus my perception of the need versus the 25 shortcoming and make a decision. Heritage Reporting Corporation (202) 628-4888
1 i DONOVAN - CROSS 18505 1 We' re talking about one of the staffing positions {}
%.]
1 Q l 2 that FEMA has determined is a 24 hours position, a full l l 3 staffing 'qdsition. That's part of the hypothetic'l. r-4 A (Donovan) Okay. 5 Q One last question on my hypothetical, Mr. Donovan,
,p my Boston Common nuclear plant.
7 Is it a fair statement that FEMA is not making a l 8 judgment as to the effectiveness of the emergency plan or l l l 9 any emergency plan when it conducts a review and makes a 10 reasonable assurance finding? l 11 MR. FLYNN: Clarification. What does the question I f 12 mean by effectiveness? l 1 13 BY MR. TRAFICONTE:
) 14 Q Let me reformulate it, Mr. Donovan. ;
i 15 The reasonable assurance finding which is a f 16 shorthand that we lawyers use, of course, is a reasonable O f 17 assurance that adequate protective measures can and will be ! i 18 taken. That's the standard that we' re exploring. i 19 When you make the reasonable assurance that 20 adequate protective measures can be taken judgment, is there i i 21 in your view a determination that a certain level of ! 22 effectiveness for those protective measures in the plan is l l 23 required? 24 MR. DIGNAN: Objection until he puts a parameter 25 on what the event is, i i ('~% ( ,) Heritage Reporting Corporation ! (202) 628-4888 l 1
DONOVAN - CROSS 18506 [)
\s /
1 MR. TRAFICONTE: The event is any event, Your 2 Honor, in the planning basis. I 3 MR. DIGNAN: Then I object to the question on the 4 grounds that depending upon what the event is it's directly l 5 going to tell you what the level of effectiveness is, as Mr. i 1 6 Traficonte has defined it. ! I I 7 MR. TRAFICONTE: That's not the question, Your i 8 Honor. I'm not asking a particular level. I'm asking 9 whether there is any level. 10 I'm asking whether the judgment of reasonable 11 assurance and aduquate protective measures can be taken, in ! 12 FEMA's view, has anything to do with the effectiveness of 13 those protective measures in the plan. l l (x
; 14 MR. DIGNAN: And I submit we're right in the teeth {
15 of the Board rulings that started with the original Sholly l l 16 ruling in this case at this point, Your Honor. j 17 MR. TRAFICONTE: Your Honor, there should be no 18 objection. 19 JUDGE SMITH: I thi1tk that may very well be the 20 case that we're getting there. However, he can answer the l l ! 21 question. If he can answer the question, that's fine, j i 22 MR. DIGNAN: My objection is the question is j 23 irrelevant because of the Board rulings. 4 24 MR. TRAFICONTE: It is not irrelevant to find out 25 whether FEMA is conducting its review in accordance with ) l O (g ) (j3/ Heritage Reporting Corporation l (202) 628-4888 l 1 I 1 l 1[
...y DONOVAN - CROSS 18507
/~) 1 this Board's legal rulings. J N~s! ,
2 JUDGE SMITH: I don't know the answer to the 1 3 question. If they do have such a standard we going to find 4 out about it. If they don't -- overruled. 5 BY MR. TRAFICONTE: 6 Q Do you recall my last question? l 7 A (Donovan) Well, your last question had several 8 statements wh4ah you interpref.ed differently. 9 First of all, ja" said a level of effectiveness, j l 10 then you said any effectiveness. Which is it? l 11 Q All right, let me reformulate it. I'm not sure. 12 When FEMA and you make a reason'4ble -- strike l 13 that. When FEMA makes a reasonable assurance finding is it () 14 making a judgment that any particular level of effectiveness 15 has been achieved as a result of the planning effort? 16 A (Donovan) In the context of your question one 17 could interpret it two ways. We do not have a preset level 18 for dose savings, if you want to put it in that terminology. 19 Again, NUREG-0654 or NUREG-0654 Supp. 1 represents . 20 a considered judgment of FEMA and NRC on what an appropriate l 21 response plan would be. So therefore a reasonable assurance 22 finding that addresses all four legs that I previously 23 described, in my view and opinion is a statement by FEMA 24 that some level of dose savings wilJ be achieved by the-25 status of offsite planning and preparedness.
\ Heritage Reporting Corporation (202) 628-4888
v q l 18508 DONOVAN - CROSS 1 Q Is it a fair statement of your testimony, Mr. 2 Donovan, that FEMA assumes that an emergency plan that meets i 3 the criteria set forth in NUREG-0654 and Supplement 1, that l t 4 a plan that meets those criteria does provide some level - - ! 5 strike that, let me withdraw that portion -- a sufficient j 6 level'of protection to meet the reasonable assurance test? l 7 MR. DIGNAN: Sufficient level of protection?. What 8 is sufficient? 9 MR. TRAFICONTE: That's the question I -- 10 , MR.-DIGNAN: I really mean it, Your Honor, we're. 11 right up against the prior rulings of this Board now. As a 12 matter of fact, I think we have transgressed them. 13 He is trying, once again, try to draw a bright () 14 line on dose savings. l 15 JUDGE. SMITH: He is not. Well, he may be. But ' 16 the question is nevertheless appropriate. 17 MR. DIGNAN: What does sufficient mean, Your 18 Honor? 19 JUDGE SMITH: I don't know. If the witness j 20 doesn't know he can say, I don't know what you mean. 21 MR. DIGNAN: Your Honor, I don't like to reargue 22 and I like to think I'm not rearguing. Maybe it wasn't 23 clear. 24 My problem, Your Honor, just as soon as you start 25 in these questions of what is a sufficient level and you do l Heritage Reporting Corporation (202) 628-4o88 1 l
i DONOVAN - CROSS 18509 1 it with no parameters of any kind as to what the event is ()' v 2 we're talking about. We're off in never, never land. 3 JUDGE SMITH: Do you want to go into the 4 particular events? 5 MR. DIGNAN: I don't think the question should be 6 allowed for just that reason. ! 7 JUDGE SMITH: The witness just said -- 8 MR. DIGNAN: He said some level of dose savings. i 9 I heard it very carefully, which is entirely within the 10 ambient of your prior ruling. 11 JUDGE SMITH: Exactly. Right. 12 MR. DIGNAN: Some level undefined and not to be 13 defined. () 14 JUDGE SMITH: Well, that's for him to testify to. ; 15 MR. DIGNAN: That's right. I 16 But then the questioner not accepting that answer 17 has now flipped the question around and asking what I i 18 maintain is a question outside of the Board's prior rulings. j i 19 JUDGE SMITH: What is the current question now? 20 MR. TRAFICONTE: The current question was a l 21 follow-up which was, is it Mr. Donovan's view that a plan 22 that is in accordance with the NUREG-0654 criteria does -- 23 as a consequence of it being in ac,cordance with those l 24 criteria provide reasonable assurance that adequate l l 25 protective measures can and will be taken. i p Heritage Reporting Corporation (202) 628-4888
v l 1 1 DONOVAN'- CROSS 18510 ] MR. DIGNAN: That wasn't your question, but I O)-
%/.
1 2 don't object to that one. 3 JUDGE SMITH: All right. l 4- THE WITNESS: (Donovan) The answer to that is no ; I l 5 because the other three parameters of a rea onable assurance -{ . 6 finding and just having a plan that meets the 0654 or 0654 ! 7 Supp. 1 criteria does not provide grounds unto itself for 1 8 reasonable finding. l 1 9 i 10 'j; 11 12 13 ()' 14 l 15 16 , s 17 18 ; i 19 ,j 20 1 21 22 l 23 l l 24 l l 25 l Heritage Reporting Corporation (202) 628-4888
DONOVAN - CROSS 18511 1 !@R. TRAFICONTE: Can I just have a moment, Your 2 Honor? 3 (Pause.) 4 BY MR. TRAFICONTE: i 5 Q Mr. Donovan, can I assume from your prior answer 6 that a plan that is in accordance with NUREG-0654's 7 criteria, that that fact does not itself support the 8 reasonable assurance finding? l 9 A (Donovan) That's correct. 10 Q One last question on this line. 11 , Mr. Donovan, it's a fair statement, is it not, 12 that FEMA is making no quantitative judgment as to the level 13 of dose savings achieved by an emergency plan; correct? () 14 A (Donovan) I would characterize that as a fair 15 statement. 16 Q Is it equally true that FEMA is making no 17 qualitative or subjective judgments as to the level of 18 protection afforded by an emergency plan? 19 A (Donovan) Well, I don't understand the adjectives 20 in the context that you are asking the question. 21 I tried to answer earlier that we said a 22 reasonable assurance finding should be inferred at some 23 level as afforded. 24 Are you asking me now to put a quality factor on 25 that some level, or what? I don't understand where ( Heritage Reporting Corporation (202) 628-4888 1 i i _ _ _ - _ - _ _ _ _ - - - - - - _ _ _ - _ _ _ _ _ _ _ _ - - - . .
I _ DONOVAN - CROSS 18512
/~'\ 1 .you're -- i \s / I 2' Q I'm trying to distinguish between a standard that ,
3 would be quantitative as compared to a standard that would 4 be qualitative or subjective. And I understand that FEMA 5 has no quantitative standard, .and I'm now asking, does FEMA i 1 6 have a qualitative standard for judging whether reasonable 7 assurance has been met at a particular site? 8 A (Donovan) Well, qualitative standard goes back ! 9 again to the review of the plan against those 0654 or 0654, 10 Supp. 1, the test of the plan in an exercise, an evaluation ]
)
11 of the exercise, the verification that the resources are 12 there and a verification that the people have been traded. I 13 And the reasonable assurance finding is composed of all j 14 four. 15 0 At any point in your review of the four legs are 16 you assessing the effectiveness of the protective measures 17 that are in the plan, tested at the exercise, for whose 18 resources you have made a verification, and with regard to 19 which there has been training afforded? 20 Are you making a judgment as to the effectiveness 21 of those protective measures? 22 A (Donovan) I don't understand the question. j 23 Our basis is that an appropriate protective 24 measures can be taken, and we dcn't attempt to determine the 25 effectiveness of one appropriate measure versus another l () seritage Reporting corporation (202) 628-4888 1
v m DONOVAN - CROSS 18513 1 appropriate measure, because the whole premise of 0654, Part I (G) 1 is that there is a spectrum of accidents. And it is the j 2 3 considered opinion of NRC that the spectrum of accidents J l 4 covers a broad range and no one accident scenario should be 5 planned for because the consequences of any one accident 6 scenario can go any number of different ways. So we don't 7 get into the issue of effectiveness. 8 We look for appropriate protective measures 9 against applying a basis that covers a spectrum of 10 accidents. Enough flexibility in the plan, the assessment 11 capabilities and the decision capabilities and the 12 implementation capabilities that deal with the spectrum, not l 13 a specific accident. () 14 MR. TRAFICONTE: Your Honor, what I propose to do, 15 we're coming up close to a quarter of five. I have five or l 16 ten more minutes to complete the initial outline I had given i 17 you, and at which point I would be on to my second sheet or 18 third sheet which has to do with specific contention areas 19 and specific findings. 20 If I could just have five, maybe 10 minutes. 21 JUDGE SMITH: All right. l 22 MR. TRAFICONTE: And then tomorrow we could start 23 in with those specific areas. 24 BY MR. TRAFICONTE: 25 Q Mr. Donovan, I would like to ask you a series of l l l i (~N
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m DONOVAN - CROSS 18514 1 questions concerning the judgment that you have formed as to 2 the compensatory measures provided in the SPMC to compensate 3 for the absence of state ad local governinental 4 participation. 5 First, I would like to read you a statement, ask 6 if you are in agreement with it. " Clearly, it will be more 7 difficult for a utility to satisfy the NRC of the adequacy 8' of its plan in the absence'of state and local participation, 9 but whether it would be impossible remains to be seen." 10 Do you agree with that statement? 11 A (Donovan) I believe the statement said the ; 1 12 utility has to satisfy the NRC; is that correct? 13 Q Let me read it'again. 4 () 14 15
" Clearly, it will be more difficult for a utility to satisfy the NRC of the adequacy of its plan'in the .
i 16 absence of state and local participation, but whether it 17 would be impossible remains to be seen." i 18 MR. DIGNAN: Is that a trick question -- l 19 MR. TRAFICONTE: No. 20 MR. DIGNAN: -- to get him to say it remains to be 21 seen in the SPMC? 22 MR. TRAFICONTE: I don't even understand that 23 trick. That's so tricky that it went by me. , 24 No, it's a statement that I'm asking whether he's 25 in agreement with it. Heritage Reporting Corporation (202) 628-4888 l l I 4
v DONOVAN - CROSS 18515 (} V 1 MR. FLYNN: I object because it calls for a legal 2 conclusion. I recognize the langauge is coming # rom one of 3 the Commission decisions, although I can't cite it. And in 4 essence, the question is asking whether he agreets with the 5 Commission rule. That's a legal matter. 6 MR. TRAFICONTE: I don't think there is anything 7 legal -- 8 JUDGE SMITH: He put it as a factual question. 9 TIIE WITNESS: (Donovan) I can't make a conjecture 10 on the behalf of the NRC on what NRC will find right or 11 wrong. 12 BY MR. TRAFICONTE: 13 Q Well, FEMA is applying the same planning standards (( ) 14 as the NRC, correct? 15 A (Donovan) Your question wasn't in context of the 16 planning standards. Your question, I believe, was -- or 17 your statement was do I agree or disagree with the i I 18 following. It would be more difficult for a utility to l 19 satisfy the 'RC. Whether it is impossible or not remains to 20 be seen. And that could be anything from here to the moon. 21 Q I'm sorry, it could be anything -- the what? 22 A (Donovan) It could be anything from here to the 23 moon: Whether they put a reactor in the Boston Garden or -- 24 and like I said, you are asking me to hypothesize myself as 25 an NRC official or an NRC commissioner and state yes or no (' ) Heritage Reporting Corporation (202) 628-4888 w_____-_____ -
t DONOVAN - CROSS 18516 l 1 to whether I agree with that question or not. 2 Q I don't have a sinister intent here. It's a fact-3 based question. The Conunission has indicated that it 4 believes it will be more difficult for a utility to satisfy 5 the planning standard than for a state and local government. ) 6 I'm asking you do you agree with that. 1 7 A (Donovan) Well, that isn't the question you asked 8 carlier. 9 Q In its new form,.do you agree with that? 10 A (Donovan) The question is it would be more 11 difficult for the utility to satisfy the NRC that it can I 12 meet the planning standards for off-site preparedness. 13 Q Than it would if were a state and local government 14 doing the planning. 15 A (Donovan) That's the question? 16 Q Do you agree with that? 17 A (Donovan) I would be inclined to say, yes, it 18 would be a more difficult job. 19 Q What would be some of the difficulties that a 20 utility would encounter that a state and local government ) 21 would not? s I 22 MR. DIGNAN: I object to relevance. What 23 difference does it make whether it's more difficult or not? 24 It's up to the Board to decide whether this plan makes it or 25 not. How difficult it was for us to ge there is irrelevant. Heritage Reporting Corporation (202) 628-4888 l 1 a m________._._ _ _ _ _ _ .__
v DONOVAN - CROSS '18517 l' We either got there or we didn't get there. That's what is 2 relevant in this case, Your Honor, not whether it would be 3 more difficult for us or less difficult under certain 4 circumstances. l 5 JUDGE SMITH: What's the relevance? j 1 l 6 MR. TRAFICONTE: The re3evance is that we have the 1 ! 7 expert agency, or the agency who is supposed to be expert at 8 the planning standards, and we hava the individual who 9 conducted the review. And I would like to know whether he i 10 imagines or thinks that there are special difficulties with 11 a utility-only planning. And if he identifies them, I would 12 like to follow up and understand in.what ways those 13 difficulties have been resolved in his own view. () 14 15 JUDGE SMITH: day, I thought. That's what you have been doing all That's where we started at noon. You know, 16 you had this letter, this 61, and you wanted to know what 17 their experience was that caused concern about utility-own l t 18 plan. 19 Are you just going around again or what? l 20 MR. TRAFICONTE: Well, the specific focus was on 21 the compensatory measures. 22 JUDGE SMITH: Well, we can all sit here and we can 23 probably check off a check list of problems we can see where i 24 a plan would be better; therefore, not as good without state j 1 l 25 and local participation. But where does it take you? ) l ; l Heritage Reporting Corporation (202) 628-4888 l l
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v J l DONOVAN - CROSS 18518 1 1 MR. TRAFICONTE: Well, where it would take me is 2 to the inquiry as to whether the plan is good enough.. 3 Whether the utility plan at issue is good enough to meet the 4 reasonable assurance standard. q 5 MR. FLYNN: As against what standard? 6 See, I'm recognizing the language now that's ) 7 quoted, and it comes from the Statement of Considerations 8 for the rule change, 10 CFR 50.47 (c) (1) . And that clearly i 9 was before the adoption of Supp. 1, which has already been j J 10 testified was designed to address those very problems. And 11 indeed, the adoption of the rule change was intended to do 12 the same thing; to at least make it pc,sible for a utility 13 plan to comply, to satisfy the Commission that it provided 14 reasonable assurance. 15 JUDGE SMITH: Mr. Traficonte, I see the rough ! 16 relevance. But what is it going to establish on the record? 17 You can get him to list ways in which a utility-18 only plan is not as good as a full participation plan. You 19 could identify those yourself, and then you're going to 20 what, after he names each of these you're going to ask him 21 as to what the compensatory measures are and how they 22 measure their adequacy? 23 Is that what your plan is? 24 MR. TRAFICONTE: Yes. 25 JUDGE SMITH: And then what are you going to have Heritage Reporting Corporation (202) 628-4888
DONOVAN'- CROSS 18519 1 at the end? 2 MR. TRAFICONTE: .Your Honor l-- 3 JUDGE SMITH: Why don't you ask him a particular 4 question, you know what? , 1 i 15 MR. TRAFICONTE: Your Honor, I think it's. pretty 6 ' clear.what we'have here. We have FEMA and the NRC'acopting l 7 a criteria document. We have FEMA conducting a. review,' l 8 coming back in and telling us that the utility's. plan'.is'in. 9 accordance with the criteria document. But we don't have 10' any testimony or any. review or judgment as to whether the 11 actual level of protection afforded by the utility plan 12 meets the reasonable assurance standard. That's'what I'm 13 trying to explore. 14 MR. DIGNAN: You know, Your Honor -- 15 JUDGE SMITH: That's where you are-going. You 16 stick to that point like glue. You never despair. You just 17 keep coming back to that. 18 MR. TRAFICONTE: Oh, I despair all'the time. 19 (Laughter.) 20 MR. TRAFICONTE: I' despair all the time. 21 MR. DIGNAN: My problem is right there. You know,. 22 I don't know if the Board -- I guess the Board receives-23 everything -- if you have had time to read the appellate 24 b'rie f s . In the Attorney General brief on the New Hampshire 25 case,.there is a long dissertation on why the reg doe'en't l Heritage Reporting Corporation (202) 628-4688
-- .y. DONOVAN - CROSS 18520 (N 1 say what it says. They want the reg'to be read not to say
- 2. adequate protective measures. They want the reg to be read I 3 as saying adequate protection.
4 You know, they argued that in Sholly here at this 5 Board and lost it. They keep arguing it. And this is what 6 this whole cross is designed to do. It is to.tranugress the 7 Board's original ruling. 8 They are up at the Appeal Board now trying to l 9 convince them to substitute the word " protection"'for the 10 word " protective measures", and I'm having a wonderful time lL1 writing my response to that. 12 But the point that it has been decided for 13 purposes of this case that reg means what it says. And () 14 15 adequate level of protection is just not part of this case, What is part of this case is whether or not there are e 16 adequate protective measures. The witness has given an i 17 excellent dissertation on the four things he looks at to 18 decide that question leading to the reasonable' assurance 19 finding. And we're going around and around. l 20 Now whether it's -- 21 JUDGE SMITH: The question is, is it relevant to 22 our case here today, those areas in which the plan could be 23 improved if there were the state and local government. 24 The Statement of Considerations say no, we cannot 1 25 compare a utility-only plan with a theoretical plan where Heritage Reporting- Corporation (202) 628-4888
-- s, ;
1 DONOVAN --CROSS 18521 l there is state'and local participation. The Statement of ("'}
%.s .
1 l 2 Consideration says that quite clearly. 3 MR. DIGNAN: That's correct. 4 MR. TRAFICONTE: I agree with that, but that 5 doesn't mean -- 6 JUDGE SMITH: Well, that's what you are doing. i 7 MR. TRAFICONTE: Well, I think'there is a j 8 disconnect, because I don't interpret the statement by the l l 9 Commission that you are not-to compare the level of 1 10 protection that a state and local government p1.an would 11 achieve with the level achieved by a utility plan. I agree , i 12 that the Commission said you are not to compare those. I 13 But it doesn't follow from that that you are not ! ( 14 supposed to judge whether the utility plan achieves a level 15 of protection that matches the reasonable assurance t 16 l standard. 17 JUDGE SMITH: Well, your line of questioning is 18 not going to get you there, because your line of questioning q 19 is simply going to make a comparison between a utility-only 20 plan and a theoretical nonexistent plan which we have here 21 without state and local government participation, and that's 22 not the standard we' re going to use. I-got some negatives 23 in that last sentence that don't belong there. 24 We are not going to use a comparison of a 25 theoretical plan in which the Commonwealth of Massachusetts a
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/T 1 and the towns and cities participate.
Q) 2 MR. TRAFICONTE: All right. Well, this was the 3 line I was going to pursue. I mean, I was going to pursue 4 the line on compensatory measures for a few more questions, ! l 5 but I'll desist then. l 6 JUDGE SMITH: Yes, if you were more focused on it, 7 but I can see you are not. You are just making the sams l 1 l 1 8 point over again. Mr. Dignan is entirely correst. l 9 MR. TRAFICONTE: That's not a bad time to break. 10 MR. BACKUS: Before you do that, Your Honor, I
, 11 have one other thing I wanted to bring up.
l l 12 I got and I presume everybody here has got a- i l 13 letter dated April 3rd from Mr. Flynn enclosing a March 28th 14 ([ letter from Mr. Peterson to Mr. Stello about the 20 percent. 15 I just want to note an objection to that. I think. 16 the Board has ruled on the 20 percent. That ruling is on 17 appeal. The Board has further ruled, as I recall it, that 18 the 20 percent planning standard for receptic:n centers was 19 res judicata for the entire EPZ, meaning it governed this 20 proceeding as well as the New Hampshire proceeding. l l 21 So I don't know what pose'. ole purpose Mr. Flynn 22 could have had sending in this interagency correspondence. 23 But in light of the Board's rulings, I think it has no place 24 in the record of this procoeding. ' 25 MR. DIGNAN: Who has put it into the record in the Heritage Reporting Corporation (202) 628-4888 i
1 1 DONOVAN - CROSS 18523 l 1 proceeding? 2 MR. BACKUS: Well, it was mailed to the judges. I 3 assume you wanted them to read it. f 4 I don't know, was there some purpose for it? 5 MR. FLYNN: For your information. 6 JUDGE SMITH: There is a requirement that in a j 7 proceeding we have, even though a certain item of- ! 8 information may not be admissible or may be res judicata, it 9 may be whatever, the Boards have to be notified of matters. 10 that are relevant to the proceeding. But it is not in 11 evidence. We are not taking it into account. It's not in 12 the record of this proceeding. 13 MR. BACKUS: All right. I 14 JUDGE SMITH: All right, want to start slowing 15 down? Are you done for the evening? 16 MR. TRAFICONTE: I thought we would break. 1 l 17 JUDGE SMITH: All right. We will meet tomorrow at l 18 nine. 19 (Whereupon, at 4:53 p.m , the hearing was 1 20 recessed, to resume at 9:00 a.m., Tuesday, April 11, j 21 1989.) 22 23 24 l 25 1 Heritage Reporting Corporation (202) 628-4888
-~m, CERTIFICATE V(i This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name: Public Service Company of New Hampshire, et al. j (Seabrook Station, Units 1 and 2) Docket No: 50-443-OL 50-444-OL (Off-site Emergency ' Planning) l Place: Boston, Massachusetts Date: April 10, 1989 () were held as herein appears, and that this is the original transcript thereof for the file of the' United States Nuclear Regulatory Comatission taken ' stenographically by me and, ! thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
/S/ 1 v
v b,~,__ (Signature typed) : Donna L. Cook Official Reporter l Heritage Reporting Corporation HERITAGE REPORTING CORPORATION (202)628-4088 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _}}