ML20055B454
| ML20055B454 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/20/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8207220363 | |
| Download: ML20055B454 (253) | |
Text
.. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .
NCC~IAR REGL"ATORY CO.T. SSICN A '
]0 ] @ [\
~
f
- 6. ;
.e f
- m. .Ja BEFORE THE ATOMIC SAFETY,AND LICENSING BOARD n ~he .v2.=ar c -
LONG ISLAND LIGHTING COMPANY :
- DOCKET NO. 50-322-OL (Shoreham Nuclear Power Station) :
l CAC'E: July 20, 1982 p;ggg. . 7169 - 7421 A"' : Riverhead, New York s&ituhn , ~T~2 6/
A wd3O g J& )?rcO W cw Y37
'. 4 s
.unensos /^ arroama o r- Q 400 Virginia Ave., S.~d. ~4asi ing .cn , C. C. 20024 Telephene : (202) 554-2245
,b ,; hyocs
- s m e-0 D E 0 i_"- 1 g
7169
() 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
! 4 __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x I 5 In the Matter of :
6 LONG ISLAND LIGHTING COMPANY s Docket No. 50-322-OL.
7 (Shoreham Nuclear Power Station) :
8 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x 9
10 Riverhead Town Hall 11 200 Howell A venue 12 Riverhead, New York 11901 l 13 Tuesday, July 20, 1982
() 14 Th e hearing in the above-entitled matter 15 convened, pursuant to notice, at 10:03 a.m.
16 BEFORE:
17 LAWRENCE BRENNER, Chairman 18 Administrative Judge 19 20 JAMES CARPENTER, Member 21 Administrative Judge 22 23 PETER A. MORRIS, Member 24 Administrative Judge 25 O
f ALDERSON REPORTING COMPANY,INC,
~
401 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-234S
}
7170 l
O i ArrEARANCES.
2 On behalf of Applicanta 3 W. TAYLOR REVELEY III, Esq.
4 JAMES N. CHRISTMAN, Esq.
5 KATHY E.B. McCLESKEY, Esq.
6 Hunton E Williams 7 707 East Main Street 8 Richmond, Va. 23212 9 On behalf of the Regulatory Staffs 10 BERNARD BORDENICK, Esq.
11 RICHARD L. BLACK, Esq.
12 EDWIN REIS, Esq.
13 Washington, D.C.
O 14 On behalf of Intervenor, 15 Shoreham Opponents Coalition.
16 STEVEN LATHAM, Esq.
17 Twomey, Latham E Shea 18 33 West Second Street 19 Riverhead, N.Y. 11901 20 21 22 l
23 24 25 l
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7171 O ' APPEARANCtS. (Coati uea) 2 3 On behalf of Suffolk Countya 4 LAWRENCE COE LANPHER, Esq.
5 CHERIF SEDKY, Esq.
6 CHRISTOPHER M. McMUERAY, Esq.
7 Kirkpstrick, Lockhart, Hill, 8 Christopher C Phillips 9 1900 M Street, N.W.
10 Washington, D.C. 20036 11 12 On behalf of North Shore Committee Against 13 '
Nuclear C Thereal Pollution 2 i
O 14 RALPH SHAPIRO, Esq.
j 15 Cammer C Shapiro 16 9 East 40th Street
]
! 17 New York, New York 10016 i
18 i
19 1 2
20 j 21 1
) 22 1
23
- O 24 25 O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554 2345
I 7172 l Q t 2
t a n. I s s : s l
i WITNESSES i 3 6 h 4
-None-j l
5 t I
_E _X _H _I _B _I T _S_
7
-None-8 i 9 i i
10 1
11 i
12 13 RECESSES:
O 14 Noon - 7256 15 Afternoon - 7338 t 16 17 18 19 20 21 j 22 4 23 O 24 :
i 25 O b l
ALDERSON REPORTING COMPANY,INC, 1 400 VIRGlNIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7173 O 1 tancsta1xss 2 (10:03 a.m.)
3 JUDGE BRENNER Good morning. We have some 4 new f aces here and some f aces we haven't seen in a 5 while, and some of the same old faces, too, including 6 us. Maybe we should get some introductions of attorneys 7 who are new to us in this proceeding.
8 MR. LANPHER: Judge Brenner, I would like to 9 introduce or reintroduce Mr. McMurray on my far right, 10 who has been introduced before, and Mr. Sedky from our 11 Pittsburgh office who has entered an appearance.
12 MR. SEDKYa It is nice to be heard.
13 JUDGE BRENNER: You say that now.
14 ( Laught er . )
15 MR. SHAPIRO: Mr. Chairman, I have not been 18 here for a while. I am f rom the North Shore Committee 17 Against Nuclear and Thermal Pollution.
19 MR. REVELEY: I have two people here dealing 20 with emergency planning. Mr. Christman who has not been 21 here before, and Ms. McCloskey who is returning.
22 JUDCE BRENNER I see Mr. Black is back, also.
23 MR. BLACK: I am Richard Black wi th the NRC
() 24 staff, and Bernard Bordenick.
25 JUDGE BRENNER: Fine. The agenda we had in O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7174
() 1 mind today would be as follows. We will start off with 2 the subject of emergency planning. We have a few 3 introductory items and then we would launch into a 4 discussion of the contentions pretty much seriatim with 5 some adjustments for subject matter as we go through 6 them. And after completing that, we would discuss the 7 LILCO Motion to Compel Documents filed against the 8 county, and the county's response which we have received.
9 After that, we just have a very brief item 10 regarding the schedule for further meetings and reports 11 to the Board on the security planning contentions. We 12 then would discuss the form for a proposed initial 13 decision to be filed by the par ties, and we had put tha t O 14 discussion off for some time and today is a good day to 15 do it.
16 And we had previously indicated that we also 17 wanted to discuss the sched ale in general f or the 18 future, in licht of the pace of the proceeding. And we 19 think in the interest of the pace of the proceeding, we 20 will hold that discussion for another day in part to see 21 what the pace of the proceeding is on the first few 22 contentions af ter 7B rather than have discussion of pace 23 of the proceeding in the sbstract. So, although we had
() 24 indicated we would discuss that, in fact, we won't today.
25 ALDERSON kEPoRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7175
() 1 We had considered whether we could take some 2 of the emergency planning contentions out of sequence if 3 that would assist Mr. Shapiro or Mr. Latham, after the 4 introductory remarks. In your case, Mr. Shapiro, it is 5 not going to be possible. We need to lead up to your EP 6 20 series.
7 Mr. Latham, we might be able to accommodate 8 you unless you want to be here all day, in which case we 9 won't worry about it.
to MR. LATHAM: No, that is fine, I will be here 11 the full day.
12 MR. LANPHER: Judge Brenner, could I just say 13 one brief thing? I delivered this morning the county's rw d 14 cross plans on contention 19, the procedural contention, 15 and also, a Motion to Strike a portion of the 16 supplementary water hammer testimony submitted by 17 LILCO. All of that stuff is in your box over there.
18 Unfortunately, just do to some transmission 19 difficulties, the cross plan related to the supplemental 20 water hammer testimony is not here yet, and- I don 't 21 believe I will have it until tomorrow morning. But we 22 are intending to submit a separate cross plan or that 23 related to that LILCO testimony, and you will have it no
() 24 later than tomorrow.
25 JUDGE BRENNER: That is fine. On the Motion O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7176
() 1 to Strike, as we have done lately, we will allow the 2 parties to work out a schedule. If written response is
- 3 requested by respondent, to pick a date for that and 4 then to set the argument approximately for a day or so 5 after the written responsa.
6 There are other motions to strike on dif f erent 7 subjects, and it is not necessary that the -- say, the 8 subject of the saf ety relief valve contentions; it is 9 not necessary that we take them all up together, but 10 tha t would be acceptable. If we could pick a response 11 time early next week, I think that would be helpful.
12 As I look at the list of contentions, that 13 would still be tim el y to rule on the Motion to Strike n 14 you just filed, if we got to it early next week. Even 15 assumino settlement of everything, for which there is 16 that potential.
17 HR. LANPHER: Judge Brenner, I was looking at 18 my calendar. We have not set dates for argument on the 19 SRV motions, ccrrect?
20 JUDGE BRENNER: That is correct. What I am 21 saying is I hope the parties are close to proposing a 22 dato to us.
23 MR. LANPHER: Mr. Reveley and I are planning r
24 to be talking about a number of schedulino things later 25 today and we will come up with that date.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7177
() 1 JUDGE BRENNER: Okay, fine. Speaking of 2 schedules, we are planning on starting at 8:30 tomorrow, 3 so if you need to alert anybody early today, please do 4 that. We may change our mind if we are exhausted at the 5 end of the day, but assuming we adjourn at a reasonable 6 hour6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> today, which is our expectation, we will start at 7 8:30 tomorrow.
8 We are going to try very hard within the 3 bounds of due process to other parties who have much to less opportunity with the staff's panni than the county, 11 to complete the testimony tomorrow, so we could launch 12 into what might be a reasonable schedule for meetings 13 and reports back to the Board on Thursday. We are not O
v 14 going to insist on it. We just want to do what we can 15 to make it more feasible.
16 Beginning with emergency planning now, we 17 received a letter sent by Mr. Sedky dated July 19th, the 18 first thing yesterday morning. We appreciate the early 19 notice and recognize why the subject matter of the 20 letter called for that early notice. I had my secretary 21 hopefully reach Mr. Sedky or somebody who could give him 22 the message indicating that we would proceed but would 23 entertain discussion of the effect of Revision 2 on our
() 24 discussion. And I hope you got that message, Mr. Sedky.
25 MR. SEDKY: Yes, Your Monor, we got the call O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.O. 20024 (202) 554-2345
7178
() I f rom your of fice around 9:45 yesterday morning.
2 JUDGE BRENNER: That might as well be the 3 first item, and I imagine -- I will turn to LILCO. You 4 have seen the letter; what is going on?
5 MR. CHRISTMANs Judge Brenner, what is going 6 on is as the count y 's lawye r said, they rec eived what is 7 called, I believe, Revision 2 of the LILCO plan, as I 8 understand it, only last Friday and tha t is because it 9 was mailed only a few days before that. Although it was 10 mailed to the NRC, I take it, on the 20th of June, about 11 two and a half weeks ea rlier than that .
12 If you ask why we didn't tell, or I didn't 13 tell, the county lawyers on the 28th this package was O 14 being sent to the NRC, I would have to say had I know 15 that it was being prepared and submitted to the NPC, I 16 would have told them. If you ask: shouldn 't I have 17 known that, the answer is probably yen, and I accept the 18 blame for that. I simply did not know.
19 Now, I suppose the next question might be:
20 What should be dono about it and wha t effect does it 21 have on these proceedings.
22 JUDGE BRENNER: You are asking all of the 23 right questions.
() 24 MR. CHRISTMAN: I am glad. When we learned 25 about this event, over the last couple of days we have O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
l 7179
() 1 attempted to identify what the changes are in what was 2 called Revision 2 over Revision 1, which the county says 3 they have been using to prepare. I think you should 4 have the benefit of my characterization of what that 5 Revision 2 is.
6 It appears to us that the Revision 2 is a 7 compilation of changes that have been in process for 8 quite some time. My understanding is that most of those 9 changes are minor, consisting of changes of one word 10 here and there or one sentence here and th e re. That 11 there are two changes of a larger nature. One of them 12 i s Ch a p te r 4, which was completely a large quantity of 13 new material. However, the procedure on which that new O 14 Chapter 4 was based was provided to the county, we 15 understand, on March 29th of this year.
16 There is another relatively important change, 17 and that has to do with the meteorological tower. That 18 was changed, but much of the material involving that 19 change was, again, provided to the county during our 20 discovery in June.
21 Now, we have prepared over the last few hours, 22 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> or so, we have wha t -- we believe we have 23 identified all of the changes between Revision 2 and
() 24 Revision 1, and I have it here on a little piece of 25 paper, and I can pass it now if you like or just give it ALDE9 SON REPORTING COMPANY,INC, 400 VIRGINIA AVE., SN!., WASHINGTON, D.C. 20024 (202) 554-2345
7180
() 1 to the county lawyers or whatever. And then I can 2 suggest how we migh t proceed.
3 JUDGE BRENNER: It would be helpful to get it 4 now, I think.
5 MR. CHRISTMANs Would the Board like four 6 copies?
7 JUDGE BRENNERs Please.
8 (Counsel handing documents to Boa rd and 9 parties.)
10 HR. CHRISTHANs Now, in my judgment, while I 11 can see that the county is entitled to draw its own 12 conclusions about the effectiveness on the contention, 13 in my judgment we should proceed just as we had planned 14 to discuss these contentions, because number one , I 15 b elie ve tha t most of the contentions will not be 16 affected by these changes, what you see before you.
17 For example, the county 's contentions, a 18 num ber of them , relate to the allegation that a 19 psychological profile should have been prepared on -- a 20 profile of the people of the county, and that that 21 should have been incorporated in to LILCO's emergency 22 plan in various ways. I find it difficult to imagine 23 how the changes that you have there will affect those
() 24 kinds of contentions.
25 Now, there are three or four contentions that l l
)
l ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7181
() 1 I think will be affected by these changes, and my 2 reaction to that is to the extent that these changes 3 have improved the plan, it may be possible that we can 4 dispose of our settlement of some of the contentions 5 after the county has had a change to look a t those 6 changes. Indeed, that would be my hope.
7 And since the question of whether we should 8 advise the county th'a t revisions were going on is at 9 issue here, I should also mention that right now, we are 10 working on words that might be offered to the county by 11 nature of a settlement that might be incorporated into 12 the plan over the next weeks or months, if the county 13 found them acceptable. So tha t is going on now, too.
O 14 And in essence, the same sort of process might 15 apply here. If these words that have been been added in 16 Revision 2 are acceptable to the county, it may improve 17 things.
18 Now, if there are any of these ch anges tha t, 19 in the coun ty 's judgment, raise new issues or make the 20 plan less good tha n bef ore , then it seems to me that it 21 would be appropriate, after the county has reviewed it, 22 for them to move to amend their contentions based on new 23 inf orma tion received on la st Friday. And whatever good
() 24 cause standard applies to the la te-filed contentions or 25 amendments to contentions it would seem to me would then D\
V ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
7182 .
l
() 1 apply.
2 But I do believe that we can probably go 3 forward toda y with contentions as stated since we are 4 discussing admissiblity, particularity and things of 5 that nature, and that really no schedule changes need be 6 maie.
7 JUDGE BRENNER: So as not to hold everybody in J
8 suspense, the real issue is not whether to go forward or 9 not in terms of black and white. If we thought there 10 was substantial doubt on that, we might have done 11 something other than gathering together as planned.
12 I think the issue is what adjustment should be 13 made as we go forward, and you have indicated your views 14 on that, also, so we are not going to make a black or 15 white decision as to go forward or not to go forward.
16 You mentioned Chapter 4 was greatly or 17 com ple tely revised, and your written summary indicates 18 that. Is it possible for you to briefy characterize 19 what is in Chapter 4?
20 MR. CHRISTMAN These t.re called emergency 21 action levels. You are familiar with that?
22 JUDGE BRENNER: Tha t is what I th ou gh t. That 23 answers the question, if that is essentially all that
() 24 Chapter 4 consists of.
25 MR. CHRISTMAN: I am told there are come 120 0
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7183
() 1 new pages, and my only additional information, which I 2 already mentioned, was that the procedure from which 3 that Chapter 4 was written was turned over in the course 4 of discovery on, I understand, March 29.
5 JUDGE BRENNER Well, I will let the county 6 speak briefly. But let me interject at this point, I 7 don't think the re is any dispute that changes are 8 ongoing in all of these things, particularly in 9 emergency planning. And I don't think the county 10 expressed any surprise that there are ongoing changes.
11 I think the nature of the surprise is that on day X, 12 some reasonably la rge interval of time af ter the 13 document were apparently available, there is a large
') 14 volume of sa terial.
15 I might say I had the same reaction, almost 16 physically tripping over the box in my office, which 17 apparently didn 't arrive a t the Board's offices until 18 late last week. Possibly as late as Friday, I am not 19 sure.
20 MR. CHRISTMAN: Yes, sir, the timing was most 4
21 unfortunate. This was, as I say, a compilation of 22 things that had been in the process for some time, and 23 it just happened tha t this large mass of ma terial was
() 24 finally put together in a package and mailed off on the 25 28th and not mailed to the county until a couple of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON D.C. 20024 (202) 554-2345
7184
() 1 weeks later. ,
2 JUDGE BRENNER: Well, we have been together a 3 lot up here, and there was certainly plenty of 4 opportunity for sny number of people to inform the Board 5 and the parties of this, particularly since we were 6 talking about setting aside a particular day for these 7 matters.
8 Beyond the particular question, in the Board's 9 view it shows an unfortunate lack of communication in an 10 a rea where communication has been greatly encouraged 11 with some pressure to all parties to keep talking to 12 LILCO. And it is inconsistent with that attitude for 13 this to happen, and that is why it is unfor tunate in the 14 larger context and, I presume, will not happen again to 15 that extent.
16 And we are not talking about the fact that 17 some changes are ongoing and you have to wait until they 18 are ready to see the f ull f ruit of those changes. But 19 here acain, they were actually available and there was 20 this gap.
21 MR. CHRISTMAN4 I accept the blame f or tha t, 22 and we will attempt to see that it doesn't happen 23 again. But really, no one is to blame but me for that.
() 24 I just simply didn't talk to the right people or ask the 25 right questions, I think.
O ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
7185
() 1 JUDGE BRENNER: Well, our purpose isn't to 2 chastise you personally. In fact, it is inconceivable 3 to me that you were only the responsible person who knew 4 about it who was also aware of what else has been going 5 on in this proceeding. And I include counsel and 6 non-counsel alike, for LILCO.
7 MR. REVELEY It is an unf ortunate 8 development. It will not happen again. Had we known 9 about it, we would have told you.
10 JUDGE BRENNER: Mr. Sedky?
11 MR. SEDKY Yes, Judge. I don't think tha t 12 the question concerns us so much today. As to whether 13 or not to proceed today; we are obviously here and O 14 prepared to go forward on the contentions. Sore of the 15 con tentions, obviously, will have an impact on whatever 16 plan is developed, insofar as those contentions involve 17 some generic type issues.
18 But what is extremely disturbing to us is we 19 --
I personally ha ve been working for the last three 20 weeks getting geared up for discovery in this case, all 21 based on a plan that doesn't exist anymore. I dispute 22 the conten tion or the representa tion made by Mr.
23 Christman as to the changes of a word here and there.
()
,~~
24 I think just simply looking a t the document, 25 they are roughly 20 percent thicke r than the earlier O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7186
() 1 one. The earlier one was double-spaced and this one is 2 single-spaced. I have run into several substantive 3 areas that have been changed, on which we had relied to 4 our detriment. Our experts have reviewed the whole plan 5 in great detail to help us formulate our contentions and 6 help us formulate discovery requests with respect to 7 documents, to help us formulate discovery requests with I
8 respect to the identification of witnesses. Indeed, the 9 whole plan was instrumental in our selection of our own 10 witnesses, our own experts, or the county's experts.
11 What we are confronted with here is in terms 12 of pre pa rin g for trial, it appears as though the last 13 three months' worth of work has gone out the window. I O 14 don 't like it, obviously. I was shocked when I saw this l 15 material, and it is not only the plan, I might add. We 16 have now a whole new set of EPIPs, and we have 17 contentions as to EPIPs. We may or may not have 18 additional contentions on the new set of EPIPs.
19 We now have a training man ual for the first 20 time. Our experts are going to want to look at that 21 material carefully and advise us as to the adequacy of 22 the planning efforts in that re g a rd . And we will need 23 to take discovery on all of the new material if our
( 24 experts advise us that it is in the county's interest 25 and in the interest of the people of Suffolk County that ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l 7187 j
() 1 tha t be done.
2 I don't know, frankly, how to go forward. I 3 think we ought to, ourselves, as counsel to the county, 4 and the county 's consultants ought to be given an 5 opportunity to review all of this revised material. The 6 NRC staff, if it received the material on or about the 7 date of the covering letter, which is June 28th, had 18 3 days advance use of this material to prepare for their 9 discovery. I think we are entitled to the same amount to of time.
11 Now, if LILCO is prepared to deliver to us and 12 to each of our consultants a marked, red-lined copy 13 showing additions and deletions by air courier, we can f
14 cut that down perhaps by a few days, but we are now 15 scheduled to take the first deposition tomorrow morning 16 at 9:30, and every question I have is predicated on the 17 old plan. And I just don't know, frankly, -- I can take 18 a deposition tomorrow based on some global type issues, 19 but I can guarantee the Board and LILCO's attorneys that 20 we are going to want these people back af te r we have had 21 an oppor tunity to look at the new plan.
22 MR. CHRISTMAN: May I be heard?
23 JUDGE BRENNER: Yes. Le t me make one comment
() 24 and then you can be heard. You don't have to go very 25 far to convince us, Mr. Sedky, tha t ga p between the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
7188
() 1 a vaila bility of this Revision 2 of June 29th and your 2 receipt on July 16th is not just any old approximate g-) 3 three-week cap; it is a three-week gap during a period
\/
4 of intense work and focus by the county and others in 5 this proceedino on preparation f or trial, which 6 necessarily ir.volved intense focus on the only revision 7 that you knew existed prior to July 16th.
8 So, I think my opening comments indicated that 9 it is not just a time gap; it is the context of when 10 that time gap occurred.
11 MR. CHRISTMANs I can agree with you on that.
12 However, the changes speak for themselves, and we 13 belie ve this to be a complete list of the changes, plus
- 14 the information about when the information was in the 15 county's hands, which in sone cases was during 16 discovery; in most cases, was in June or in March.
17 We can 't have a red-lined copy of the plan 18 showing those changes in the plan as opposed to showing 19 them the piece of the paper you have before you by 20 Th u rsd a y , and we can, of courset deliver that to the 21 county people.
22 But I think that to say that this changes the 23 focus of the discovery or has any material effect on
() 24 most of the work that has been done over the past three 25 weeks simply ignores the facts of what the ch an ge s O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7189
() 1 amounted to, and that is laid out on this document. Mr.
2 Sedky simply hasn't had a chance I think to focus on 3 what those changes amount to. And that is shown on this 4 paper.
5 JUDGE BRENNER: Yes, I think that is a large 6 part of the problem, and it is understandable.
7 MR. LATHAMa Judge Brenner, I have just a 8 couple of things I would like to add at this point. I 9 think there is a basic question here that LILCO is 10 asking the parties to accept without question the three 11 or four-page analysis that they have given us here 12 today, after they themselves have indicated that they 13 only recently found out that a revision was being 14 submitted.
15 I certainly cannot -- and I suspect the county 16 or Mr. Shapiro cannot -- accept without checking for 17 ourselves to see whether or not these changes are 18 totally correct.
19 Also, there are a couple of questions that I 20 would like to ask about the status of this apparently 21 second revision. I notice that some of the documents 22 that I have seen -- looking, for example, through the 23 Volumes 2 and 3, the implementing procedures, --
are
() 24 labeled again Draft Copy. I no tice that the dates on 25 some of them - some of them are February, some of them ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345
7190 are May and some of them are July, and I don ' t know-(]) 1 2 whether or not additional changes are going to be 3 forthcoming or on what timeframe.
()
- 4 I don't know the extent to which Volumes 2 and 5 3, the implementing procedures, have been revised. Mr.
6 Christman has handed us an explanation of these 7 revisions based upon, I think, just Volume 1 and there 8 are six additional volumes, three of which, 5, 6 and 7, 9 apparently are new; Volume 4 appears to be substantially to new, and Volumes 2 and 3 are apparently revised to some 11 ext ent . So the changes appear to be quite a bit more 12 extensive than just those listed on the four page 13 document.
14 I would also toss out at this point, although 15 maybe we will want to discuss it later, but it certainly 16 is consistent with the county's request to have some 17 additional time for discovery, and I understand that the 18 staff audit which had been scheduled to begin today at 19 Shoreham has once again been deferred. And I do not 20 know for how long that has been deferred, but you will 21 recall that the emergency planning schedule was 22 predicated on the commencement of that audit on the 19th 23 of July, with the staff report due in hand I think the
() 24 15th of August and testimony due a month la te r .
25 I think there is a new schedule now which we e )
%,/
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7191
() 1 will have to discuss, which I am sure is relevant to 2 discuss today. And I would simply toss those questions 3 into the hopper now, as vo discuss the emergency 4 pla nning question more.
5 JUDGE BRENNER4 Dividing up your points, Mr.
6 Christman, are these changes just in Volume 1 or 7 throughout the volumes?
8 MR. CHRISTMAN: These are the changes to the 9 plan, which is a one-volume document. Apps rently, it is 10 possible --
we did not have time to go through all of 11 the volumes to see if the county had all of those things 12 in the past or not. We can do that, of course.
13 MR. SHAPIRO: Judge Brenner, it is apparent N
14 that one must consider the impact between the changes 15 which are listed on these three or four pages, which are 16 represented to be complete but certainly should be 17 subject to an analysis and checking with this red lined 18 annotated copy tha t was suggested before by counsel for 19 the intervenors.
20 And in addition, however, there is bound to be 21 sn impact between the supporting documents listed under 22 III on the last page and Volume 1 of the plan. There 23 has to be an interaction, and given the very, very (em,) 24 summary nature, exceedingly summary, bare bones nature 25 of the changes, or the descriptions -- not even changes, O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7192 but the descriptions -- in A and B in III, I think that
(]) 1 2 is another problem tha t has to be tossed into the hopper 3 that the Board has got to consider.
4 I don't want to repeat what the other people 5 said.
6 JUDGE BRENNER: I was about to say that we are 7 not equipped here this morning, obviously, to on the 8 record go through a detailed discussion of what changes 9 there might be. We recognize that the changes logically 10 would extend beyond Volume 1. They may be detailed 11 changes for which the interlineation method is needed; 12 they may be broader changes. That is where before, they 13 had no EPIPs for a certain subject and now they have
(~
14 th9m, in which case there are other methods of apprising 15 you of what the changes are.
16 I wanted to go to one of Mr. Latham's other 17 points as to the schedule for the emergency exercise.
18 We had emphasized very strongly I thought that we wanted 19 advance notice of any change in that schedule, and that 20 exercise was supposed to begin either last week or this 21 week. And if there is a change, we did not receive the 22 advance notice.
23 MR. BLACK: Judge Brennar, I was going to
() 24 bring that up at the earliest possible time of the day, 25 but it was something that was just decided by the staff O
A1.DERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7193 O
(_) 1 late last week, and I was'coing to send out a letter 2 yesterday but decided it would probaby be better to 3 announce it orally today when everybody was here and had 4 an opportunity to discuss it.
5 But I am prepared to do that now, to discuss 6 the reasons why that on-site appraisal has been 7 postponed; what impact we think that this postponement 8 would have on schedules. We say right now the impact 9 itself, by reason of the postponement, should be no 10 change in the schedule. And I am prepared to set forth 11 what the staff actually thinks, what this appraisal is, 12 and wha t impact it should have on the staff testimony 13 and, subsequently, on schedules.
O 14 So perhaps I can do that after this subject 15 matter that we are discussing now is finished.
16 JUDGE BRENNERs Why don't you do it now? We 17 won 't entertain response to it right sway unless 18 absolutely necessary, but I think it was around on or 19 about June 17th, at around transcript page 4533 to 4553 20 when we came up wi th the emergency planning schedule, we 21 emphasized that it was all being keyed to the exercise.
22 So I am interested in how you reached your conclusion 23 tha t no cha nge would flow from any change in the 24 exercise.
25 And maybe you should briefly tell us what the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 CO2) 554 2345
7194 change in schedule would be and why.
(]) 1 2 MR. BLACK: Okay. Insofar as the schedule for 3 the on-site appraisal, there has not been a definitive 4 date established as of yet, but the best estimate at 5 this time is that it has been deferred until about the 6 first part of September. And the reason for that 7 postponement is really a staff decision that it would 8 like to assure itself that there was adequa te personnel 9 and procedures in place at the Shoreham facility in 10 order to make a meaningful review and to assure itself 11 that no follow-up appraisal was needed. And that 12 expenditure of resources was kept to a minimum by the 13 NRC staff appraisal team.
14 It is a team from the region. There are 15 numerous individuals involve,d, and the region itself 16 j us t wa n ted to assure itself that it would have a good 17 expenditure of resources for that appraisal, so they 18 decided tha t perhaps a one-month or so deferment was 19 necessary.
20 Now, the reason I say that this will not 21 impact the previously-established schedules, would 22 necessitate a change in staff position -- now, at the 23 transcript at the April 20th prehearing conference -- I
() 24 believe it was April 20th, but it was -- or maybe it was 25 April 13th, I forget the date. But there was an April O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 2002*(202) 554-2345
7195
() 1 20th prehesring conf erence order, but at transcript cite 2 766, staff counsel, pursuant to a. question propounded by 3 Judge Brenner, indicated that the staff testimony would 4 have to be follow the on-site appraisal.
5 Now, that position by staff counsel, we would 6 have to say needs to be clarified and revised at this 7 point, and I think it has to be clarified, the context 8 that it never has been, p robably never will be, a staff 9 position; that pre-operational or operational inspection 10 processs will be pa rt of the licensing decision process.
11 When I say it never has been, it certainly 12 hasn 't been a t least in the staf f counsel's 13 re8ollection, that any pre-operational or operational O 14 inspection process has been a necessary predicate for 15 staff testimony. Now certainly , these inspection 16 programs, to the extent that they have been completed, 17 can be f actored into a licensing process, a licensing 18 decision process where appropriate, but that has never 19 been sta ff 's position. And as best as we can ascertain, 20 in the future probably never will.
21 We think that this decision that these 22 pre-operational and operational inspection processes 23 should not become part of the Licensing Boa rd , Appeal
( 24 Boa rd or Commission licensing decision process is 25 fortified by the recent amendment to the reg ula tions 3
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
l 7196
() 1 t ha t was just published in the Federal Ragister on July 2 13th, 1982. The cite for that is 47 Fed Reg 30,232, and 3 that regulation, of course, deals with the off-site 4 emergency exercises. But there is some language in the 5 Commission's decision regarding that rule change that I 6 think is appropriate for the staff position with respect 7 to pre -opera tional and operational inspection programs.
8 I think that it is clear that the regulation 9 now states that emergency preparedness exercises are 10 part of the pre-operational inspection, and thus, 11 required prior to operation above 5 percent rated 12 power. But the Commission was clear to note that the 13 pre-operational inspection programs and the emergency 14 preparedness exercises are not required for a Licensing 15 Board, Appeal Board or Commission licensing decision.
16 So, tha t decision by the Commission to amend 17 5 0. 4 7 ( b') or 10 CFR 50.47 and Appendix E to 10 CFR 50, 18 Part 50, clearly indicates that the Commission has 19 decided th a t pre-opera tional er operational inspection 20 processes should not become a part of the Licensing 21 Board decisions.
22 JUDGE BRENNER: Do you think it says that?
23 MR. BLACK: Yes. I also might point you to --
(') 24 JUDGE BRENNERs Let me point to a possible 25 contrary reading. The possible contrary reading would O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
7197
() 1 be to emphasize that those exercises are not required 2 per se as a matter of law in the abstract, but that with 3 the lonc line of pre-existing case law, the change in 4 language does not state that the exercises can 5 necessarily be excluded, regardless of the issues in 6 controversy.
7 And there is a line of case law -- and I am 8 sure the staff is familiar with it -- that discusses the 9 extent to which matters can be left for post-hearing 10 resolution by the staff.
11 MR. BLACKS And certainly, such matters as 12 tha t can be left to conditions in the licensing decision 13 itself. At this point, we are merely saying that staff 14 testimony need not be predicated on completion of this 15 particular on-site a pp raisa l, nor need be predicated on 16 completion of any pre-operational inspection or 17 operational inspection process.
18 I would also like to point you to some 19 language in the Federal Register notice which is at --
20 it is, I think, at 47 Fed Reg -- well, I don't have the 21 page number. Hold on a second.
22 (Pause.)
23 It should be at 30,236. And I don't know if
() 24 the Board has a copy of that page; the one tha t was I
25 returned to me evidently doesn't have it left in there.
l C)
ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7198
() 1 But it does state at 30,236 insof ar as emergency 2 planning and preparedness requirements are concerned, a 3 license authorizing fuel loading and/or low-power 4 operation may be issued after a finding is made by the 5 NRC tha t the state of on-site emergency preparedness 6 provides reasonable assurance that adequate protective 7 measures can and will be taken in the event of a 8 radiological emergency. The NRC will base this finding 9 on its assessment of the applicant's emergency plans 10 against the pertinen t standard sub-paragraph (b) of this 11 section, and Appendix E of this part.
12 Now to me, that language means that the 13 reasonable assurance finding by the NBC will be set O 14 forth in its safety evaluation report after its 15 evaluations of what has been documented in the FSAR.
16 That SER assessment and the reasonable assurance 17 standard for emergency planning and preparedness will be 18 the foundation for staff testimony on this subject 19 matter. And I think that language clearly indicates 20 what has been characteristically past NRC practice.
21 Ihat staff testimony will be predicated on SER inputs as 22 opposed to anything that relates to inspectional 23 programs. .
24 JUDGE BRENNER: 'J e will discuss it amonc the 25 Board membars before I come back with much, but I don't ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7199
(]) 1 see how tha t language gets you to the distinction you 2 just drew. I see how that language is going to be 3 pertinent to talking about the scope of issues we want 4 to consider during this first phase.
5 Back at the prehearing stage, we'had discussed 6 a proposed rule, and now we have the final rule. The 7 distinction the Commission is drawing between low power, 8 possible low power, and possible full power and what has 9 to be looked a t in the language is pertinen t to tha t.
10 But I just don't see anything in there that cuts off the 11 on-site inspection from those issues, regardless of what 12 issues are in the case. l ,
13 MR. BLACK: If. I might make one other point to 14 perhaps indicate to you what an on-site inspection 'and 15 appraisal is, it is nothing more than an audit. And 16 audits which are part of the pre-operational inspection 17 process are really -- it is really a dynamic process; it 18 is ongoing, much the same as emergency planning i s 'an 19 ongoing process, to reflect ongoing developments, 20 education and learning functions.
21 And to that extent, we could never f reeze it 22 in a certain timeframe and sayithat this appraisal 23 indica tes the staf f -- the lat'est'or the last.-staff
() 24 judgment with respect to on-site emergency planning. It 25 is a process ' hat will continue from this point f orward
/
ALDERSoN REPORTING COMPANY. INC,,
400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554-2345
4 7200
() 1 all the way up until the operating license.
2 That is why we would state at this point, as 3 we have always indicated before to the Board, that we g3 d 4 don 't believe tha t these on-site appraisals should form 5 the basis for staff testimony. Certainly, to the extent i 6 that we can factor it in and it is relevant to any of 7 the issues tha t may be in controversy with respect to 8 emergency planning, we certainly would consider it 9 appropriate to bring the on-site appraisal in.
10 And in fact, if it is -- the on-site appraisal t
11 is accomplished by the middle part of Sep tember, and the 12 appraisal report comes out two or three weeks af ter 13 tha t, there is a good chance that whatever we learn on 14 that on-site appraisal can be factored into staff 15 judgments with respect to the issues.
16 But we are stating at this point tha t we feel 17 that it is not a predicate to our staff testimony at 18 this point in time, which will find its foundation in 19 the SER input.
20 JUDGE BRENNER: Nell, I was going to mention 21 something pertinent to your last point. And as I 22 understand part of what you are saying, you don't read 23 the Commission 's rule as per se e xcl udin g the need for (G_) 24 information from the on-site appraisal, regardless of 25 the issues in controversy.
O ALDERSoN REPORTING COMPANY. INC, 400 VIRGINlA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7201
() 1 And if you go that far, then you are also 2 saying se should go ahead, but depending upon the 3 3 timing, we will either be able to get the information in 4 time or perhaps hold the record open or someth'ing of 5 tha t na ture.
6 MR. BLACK: I think that is a distinct 7 possibility. I certainly was no t sa ying that any part 8 of the pre-operational inspection program was prohibited 9 by my reading of this regulation. My reading of that 10 regulation is only that it is not required for a 11 licensing decision by either the Licensing Board, the 12 Appeal Board or the Commission. And I think that is 13 fairly clearly set forth in that regulation.
14 JUDGE BRENNER: Okay. That is a little 15 different than at least one thing I thought I heard you 16 say. I am sure we are all interested in resources, and 17 I wonder if the staff in making its decision -- and I 18 will maybe pursue it far enough to find out the extent 19 to which LILCO was involved and accedes to that decision 20 --
I wonder to what extent the resources of this 21 proceeding were taken into account in that decision, in 22 terms of the extensive hearing time that would likely 23 occur if issues which migh t be solvable by readily
(') 24 ascertainable f acts through the on-site a ppraisal are, 25 nevertheless, kept in b fause people don't know. And we O
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7202
(]) 1 spend days and days litigating such issues involving the 2 Board, the parties, witnesses, arguably many of the same 3 staff people who have been involved in this on-site U
4 appraisal.
5 And then have to litigate it yet again to some 6 extent when the results of this appraisal come out, to 7 the extent they are pertinent to issues in controversy 8 which we want to decide during this phase. And part of 9 the context for that is we have id en tified some 10 contentions that we think there ough t to be facts one 11 way or the other, and we don't propose to sit here and 12 listen to a lot of testimony on the facts which can be 13 arrived at. They are not very expert opinions; it is a 14 matter of what the facts are, and the parties can better 15 focus on them and then to come us when there is greater 16 resolution, and we will talk about those in the context 17 of particular contentions.
18 But what the staff is proposing here is 19 inconsistent with that approach of resolving things 20 before we litigate them. You indicated at one point 21 that this is an audit type review, except in the sense 22 tha t the sta f f isn't going to look at everything. But 23 neither is it a mere checklist type audit of the type
() 24 that can be delegated post-hearing to the staff, such 25 as, oh, --
you will inspect th e postions of the listed ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7203
() 1 six valves once every two weeks and will document that 2 that has taken place. And then the staff will inspect 3 to ensure that the documentation reflects that. And we C4 4 are not talk ing about that.
5 I guess I want to get a better handle on the 6 decision that led the staff to believe this would save.
7 resources. Is it that LILCO is so unready at this point 8 that a delay --
that there would likely be so many items 9 tha t have problems that there is just no point in going 10 ahead? Or is it the other side of the spectrum; that 11 there are maybe some items that should be taken care of?
12 And maybe I should turn to LILCO at this point 13 since, Mr. Reveley, you were very candid about the 14 reason for this schedule which caused what we considered 15 to be a lengthy waiting period then until the end of 16 July. And where does LILCO stand with respect to this 17 current proposal?
18 MR. REVELEY: A bit of background first, 19 Judge. When the staff indicated sometime ago tha t the 20 appraisal was a pre-condition to its preparation of ,
21 testimony, we were surprised and not pleased and 22 objected. But obviously, if the staff concluded that an 23 appraisal was a pre-condition, there was nothing we O
(_ 24 could do about it.
25 Our understanding had been that an appraisal O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7204 had not previously been a pre-condition to the staf f 's
(]) 1 2 filing testimony on emergency plannino issues. We had 3 hoped at that time that an SEB supplement closing out 4 the open energency planning issues would suffice as a 5 predicate for the staff's testimony, as had been the 6 customary practice. Accordingly, we are pleased that 7 the staff now feels that an SER supplement closing out 8 of open emergency plannino issues will, in fact, suffice 9 as to the appraisal.
10 .We were prepared to go forward on the 19th.
11 It is true that there would have been a number of 12 confirmatory items, open items, subject to confirmation 13 later. Thus, I think it is true that from the staff's O
k/ 14 perspective, it would have been less efficient to go 15 forward now than to wait some time.
16 JUDGE BRENNER: You believe that is the case, 17 even taking hearing time into account?
18 MR. REVELEY: Well, Judge, if you don't have 19 to have the appraisal as a predicate to hearing the 20 issues, as apparently has been the case in other 21 proceedings, then whether the appraisal has occurred or 1
22 not is not germane if, in fact, the necessary l 23 information can be amassed in some other fashion.
f () 24 I don't see anything particularly talismanic 25 about the appraisal. What is crucial, as you point out, O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
1 7205
() 1 is whether or not the basic facts are present. In our 2 judgment, the basic facts can be present if the staff 3 closes out the open items in the SER, and if, in fact, a 4 productive process of settlement discussion goes forward 5 among the pa rties.
6 In mi opinion, a productive process has not 7 yet gone forward. This morning was not encouraging, but 8 I think reform is always possible. And certainly, we 9 will do our best to see that it happens.
10 So, Judge, if I thought that the only way to 11 get the necessary facts to avoid holding up the 12 litigation was to have this appraisal, I would agree 13 that the appraisal is a condition precedent. I do not
/")
\~' 14 believe that to be the case. But I certainly don't 15 claim to be omniscient in this proceeding, but I think 16 we can get the requisite facts without the appraisal.
17 And my understanding from the discussions at 18 the end of last week that LILCO had with the staff was 19 that in the staff's opinion, if it came and did the 20 appraisal now, there would be a sufficient number of 21 confirmatory items that it would have to come back and 22 do the appraisal again, at least before f ull power 23 operation. And given the limitation on the staf f 's
() 24 resources, it simply did not want to do tha t.
25 We were not in a position to either acquiesce O'
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
a 7206
(]) 1 or not acquiesce. The staf f made the decision.
2 However, we were perfectly willing to acquiesce so long 3 as the staff decoupled the appraisal from testimony.
4 Though I think our acquiescence, as I said, did not make 5 any difference on way or the other.
6 JUDGE BRENNER: Let me suggest this 7 preliminarily, because I want the parties to talk about 8 it before we come back this af ternoon, among 9 themselves. And the Board will talk about it, also.
10 I want you to consider the effect on possible 11 settlement or narrowing of issues of holding or not 12 holding that exercise in the timeframe sooner than the 13 beginning of September, notwithstanding the real 14 possibility that there will be some items that won't be 15 closed out because of that.
16 I suggest to you that if you hold it to the 17 end of December, there may still be some items that you 18 are not going to close out because to my extent, the 19 views of the staf. and LILCO won't fully crystallize 20 until they focus on what has been found.
21 So if you are waiting for everything to fall 22 into place, that never happens. That is the purpose of 23 the appraisal, in fact; one of the purposes. So I want
() 24 you to consider that ef fect.
25 Consider also the possibility that there may
) !
ALDERSON REPORTING COMPANY,INC.
400 VIRG!NIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7207
() 1 be some issues in controversy for which, given the 2 nature of the issue, resolution by the Board in the g-) 3 Board 's view could not occur until af ter the appraisal.
U 4 If we considered that the appraisal is not a checklist 5 type item -- and we are not talking about a matter of 6 law now; we are talking about as a matter of fact as 7 applied to the particular issue. And if you took a look 8 at issues -- well, it won't take much imagination to 9 find issues that fit that category, I suggest to you.
to MR. REVELEY: We will certainly look into that.
11 JUDGE BRENNER: Well, the healthy physics 12 staff and their ability to respond to what is going on, 13 the communicators and their ability to staff the right O 14 posts, the very things I am very familiar with, the 15 substance of these on-site appraisals. And those are 16 two of the things focused on usually.
17 To the extent practice has been invoked here, 18 you don 't have a long history of practice with this, and 19 I have seen issues litiga ted tha t would have been very 20 difficult to litigate without the benefit of that 21 appraisal. As a matter of fact, I take no issue with 22 the proposition that the appraisal should not be 23 required per se as a matter of law without regard to
( 24 what is in controversy. I have no problem with that 25 proposition.
l J
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
i 7208 But looking at what is in controversy, I
(]) 1 2 succest both as a matter of our actual litigation, we 3 are going to need some of the things, and also as a 4 ma tter of wha t the intervenors rationally might like to 5 see before they would be willing to narrow or settle 6 some of the issues which might be otherwise-admissible.
7 If there is no settlement, that would affect that 8 judgment.
9 I won't ask you the question, Mr. Reveley or 10 Mr. Black, but I suqqest that if you are representing 11 the county or one of the intervening groups, you would 12 want to see that appraisal before you settled some 13 issues that were going to be affected possibly by the O
\/ 14 results of the a ppraisal.
15 MR. BLACK: Are you finished?
16 JUDGE BRENNER4 Almost. In terms of 17 resources, we are concerned with resourcas, too. If you 18 take a look at the resources consumed day by day in this 19 hearing, and I think it won't take very long to see 20 where the balance would fall. We would have been 21 happier if the staff had discussed what it was thinking 22 among the parties and the Board at a session like this, 23 rather than reach a unilateral decision. And therefore,
() 24 I hope the decision is not chiseled in stone.
25 The original schedule is past. I don't know O l i
I 1
ALDERSON REPORTING COMPANY,INC, l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7209
( 1 if the beginning of September would be compatible or not l l
2 with what else is going to occur in this proceeding, but 3 it is enough to know that it might not be. And it may I
(])
4 be a reasonable compromise, considering the trade-off in 5 resources of this hearing and the staff if some date in 6 between the beginning of September and this time period 7 can be chosen, to have that exercise. The opportunity 8 for other items to have been resolved may have 9 occurred. In any event, we will get a narrowing.
10 The quid pro quo is we intend to be very 11 aggressive in not litigating issues which are 12 susceptible to readily-ascertalnable facts, so if you 13 give us the information, we will apply it before we 14 willy-nilly entertain litigation on issues. But if the 15 inf orma tion is not available partly because assessments ,
16 have not been made, then obviously, we would not be able 17 to pursue that course. And we have expressed that time 18 and time again.
19 Emergency planning is an area that is more 20 susceptible than most, particularly with the county 21 involved, and the county's independent responsibilities 22 to a meeting of the minds of just what the facts are.
23 If you cannot resolve the dispute , you can at least come 24 to us with focused stipulations of what the facts are, 25 and we can reach a decision.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7210
() 1 I don't need to listen to an expert with three 2 degrees to tell me about whether there are enough
{} 3 telephone lines involved. I don't need to listen to an 4 expert to tell me what a sign for a transient on a beach 5 should be so that coneone who can read will understand 6 it, and so on.
7 But, it would be apparently somewhat 8 inconsistent with the spirit of the parties getting 9 together, which we will vigorously pursue, if the staff 10 and possibly IILCO do not, on their own behalfs, do 11 everything that can be done to bring all information 12 forward, and that would include valuable information 13 from that type of on-site review.
O 14 Yes, there are contentions that can be 15 litigated without the on-site review, but the prospect 16 of going ahead and litigating the contentions, and after 17- finding out we have to be back in litigation on some of 18 them, is not looked upon favorably by me at least, and I 19 will talk to the other Board members. I intend to leave 20 Riverhead some day.
21 ( Lau gh t e r . )
22 So it is not just a matter of the legal 23 reading of the regulation, even if we agreed with your 24 reading, Mr. Black, more fully than I think we do. It 25 is a matter of the common sense application to what the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7211
() 1 staff can do in the context of this proceeding and the 2 issues.
{} 3 HR. BLACKS With that suggestion in mind, I am 4 sure that we will take another look at this and see wha t c
5 we can do to expedite the a ppraisal so that we can 6 factor those results into anything that we might want to 7 tell the Board.
8 But I think in a nutshell, what this whole 9 thing boils down to is an interpretation of the legal 10 standard of reasonable assurance, which the Board must 6
11 com#e up to. And your definition of reasonable assurance i~
12 may differ somewhat from what the staff 's is at this 13 point in time. And I think that it is probably no O 14 different than comes up in any other type of licensing 15 proceeding.
16 At this point, of course, we are saying that 17 the reasonable standard can be met by an SER type input l
18 of an independent evaluation of FSAR documentation. And 19 I think what you are telling us is tha t perhaps in this 20 particular subject matter or other subjects that may 21 come up in the context of this proceeding, that SER 22 inputs may not quite be enough to sa tisf y the Board on 23 this reasonable assurance standard. And to the extent (3
\/ 24 that that difference may crop up, of course, we are 25 anxious and willing to hear what the Board 's points on O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7212
)
I
() 1 that may be.
I 2 But I guess my comment -- and I will keep at
(} 3 this at this stage of what we are discussing here -- is that insof ar as the staff is concerned, SER inputs are 4
5 wha t staff testimony have characteristically been 6 predicated on.- And I think we should go forward with 7 tha t .
8 And I also say that these inspection reports 9 and any operational inspection program, pursuant to what 10 the Commission said in its recent rule change, are not 11 required for Licensing Board decisions. Tc= the extent 12 that they can be factored in, we would recognize that 13 and think that is a good solution to having everybody O 14 come out with a warm feeling that things have been not 15 only committed to, b ut actually have been put in place .
16 with respect to any facility.
17 And to that exten t, we can come up with good 18 words to the Board and good assurances to all parties 19 involved that, in fact, what has been committed to has 20 been put in place, I think that would go a long way to 21 satisfying everybody. And to the extent that you, 22 Judge, better indicated that, I think we will try to go 23 along that course in making sure that we can give you 24 our best inf orma tion as the course of this proceeding 25 goes along.
O
't ALDERSON REPORTING COMPANY, INC, '
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7213 1 But I think that wha t our problem was 2 ini tiall y , tha t we just had the tail wagging the dog 3 here, insofar as an erroneous staff statement earlier in 4 the prehearing conference. I just think we want to let 5 our thoughts be known at this point; that I think that 6 was an erroneous statement but maybe it was said in good 7 faith, and perhaps what was said should be done in the 8 real world.
9 JUDGE BRENNER: Don't worry about Mr. Repka's 10 sta tement. None of our views are keyed to or stimulated 11 by his statement, so he didn't sell you out when you 12 weren't here.
13 MR. BLACK 4 We tried to assure him of that, 14 too.
15 JUDGE BRENNER In f act, he said something to 16 the contrary at one cime and I reacted nega tively. He 17 said tha t his testimony wouldn ' t be affected by the l 18 results of the exercise.
19 MR. LANPHER: Judge Brenner, could I be heard?
20 JUDGE BRENNER: I think we are going to let 21 the staff think about and the parties talk about it. I l
22 will let you be heard briefly, but let me make two 23 comments.
24 It is not a simple matter. The Boa rd might 25 agree or not agree with what the staff thinks applies O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
l 7214
() 1 reasonable assurance. We could all, including possibly 2 the intervenors and the county, think that what we have 3 before us looks like reasonable assurance, only to find
)
4 out the applecart is upset, so to speak, by results of 5 the a pp ra isa l . And I don't expect to churn here day 6 after day on litigation and relitigation. That is one 7 of the big problems when you think about resources.
8 Secondly, it is not a matter of a warm feeling 9 that what LILCO said they will do they are, in fact, to doing. That would be more of a checklist type ites 11 which we would be less worried about, whether or not 12 that type of inspection occurred. There is a wide area
- 13 of judgment as to what needs to be done to meet some of 14 these planning guidelines, even as to the on-site 15 planning. And it is that area that could be important.
16 The only other thing I will say is this 17 question about relying on SER input or not relying on 18 SER input, which is kind of the label that both you and 19 M r. Reveley have used, really isn't very helpful. But 20 you can put anything in an SER and call it an SER. And 21 whether or not that suffices to deal with the issue in 22 con trove rsy turns on the pa rticula r issue and the 23 particular input. So I guess I don't understand fully
} 24 the dichotomy, SER input and non-SER input.
25 I think it is more instructive to examine the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 s
s 7215
( 1 question in terms of how much would be put off by not 2 having this audit inspection by the staff, in terms of 3 what is in controversy. Are there facts that we shoud
(]}
4 know? That is one issue.
5 The other issue is: Is it an area of 6 reasonable judgment as opposed to a checklist type item 7 where depending upon the results of the inspection, what_
8 we have litigated might have to be reopened, even if we 9 initially agreed with you that it appeared that there 10 was reasonable assurance.
11 I don't want to have to relitigate the matter, 12 I don't want to have to deal with motion to reopen 13 except to the extent necessary. I am being very blunt O 14 about it. We are talking about practicalities of 15 litigation. And I would think all parties share an 16 interest in efficiency th e re , because once you get into 17 litigation, it is less easy to control the efficiency of 18 the process than other endeavors in life. And I think 19 we all know that.
l 20 So it is a matter of m elding the legally 21 required with the practicalities of this proceeding, and 22 I think that can be done and I hope it can be and that 23 we hear back on it, hopefully, today. Mr. Lanpher?
24 MR. LATHAM: You covered part of what I wanted 25 to say, so I will be very brief, Judge Brenner.
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7216 s
() 1 My distinct recollection when we were 2 discussing the schedule was -- subsequent to the 3 p re hea ring conference, but -- when we were in trial,
)
4 probably on 7B -- that is a safe guess, at least.
5 (Laughter.)
6 When the schedule was being discussed, the 7 staff made representations that it needed to complete 8 this on-site appraisal, and tha t that appraisal would 9 form something.of a report which would be the substance 10 of their testimony.
11 My recollection is not that this was stated in 12 the terms of a licensing requirement or whether the regs 13 required this to be done at a time or not. But rather,
()- 14 that for the staff to have comfort with its substantive l
15 input and to be usef ul to this Board and to the parties l
16 with the substantive testimony that they proffered, this 17 appraisal was valuable inf ormation and necessary. I now 18 hear for the first time this morning that this vague 19 thing, SER input, apparently will be enough.
20 I would like -- I think it is important in 21 these considerations that are going to go on through the 22 rest of the day to really be sure that the input tha t 23 will be made available is adequa te. And this seems to 24 m e, from a factual point of view, not legal, but from a 25 f actual point of view is a complete reversal of the l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7217
() 1 staff's earlier position that they needed this appraisal 2 to gain the necessary facts so they could fully apprise 3 people, 4 If that is not the case now, I would like to 5 know how they will have the facts available whenever, 6 without having done that appraisal. The detailed 7 facts. And this Board is correct -- emergency planning 8 gets down to the nitty-gritty on a lot of these issues.
9 It just seems like a complete reversal as to 10 the f actual ma tter.
11 JUDGE BRENNER: You are entitled to your 12 views, which you just e xp re ssed . I don't think pursuing 13 that would be productive. They have indicated -- M r .
O 14 Black has indicated that the staff considered their 15 position, and in light of that consideration, gave their 16 position this morning. I guess I have asked them to 17 think about it some more, without necessarily 18 sacrificing their legal view.
19 I don't recall Mr. Repka saying it quite the l
20 way you just said it. I think you will find part of the 21 discussion possibly on the transcript pages I cited l
$ 22 earlier, and in any event, none of our comments -- or 1
23 none of my comments -- were keyed'to what staff counsel 24 might or might not have said previously. So we can take 25 it from this point forward.
ALDERSON REPORTING COMPANY,INC,
~
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7218 1 Getting back to Bevision 2, we will have to 2 consider the effect immediately on the discovery 3 schedule. We considered that it might have an effect 4 before we had this session this morning. I guess we 5 didn't focus on the immediacy of the effect , although we 6 also knew about the de positions tomorrow. I just didn't 7 put the two things together.
8 We are willing to consider an extension of the 9 discovery schedule so parties can focus on Revision 2.
10 It would be helpful to us if the parties can work 11 something out themselves. If not, we will work it out 12 for you.
13 NR. SEDKY So far, we have not had trouble O 14 doing so , Your Honor, and at least from my experience, 15 it is always better for the parties to work it out 16 because usually, what the court does is much worse.
17 (Laughter.)
18 JUDGE BRENNER Especially this court.
19 (Laughter.)
l 20 It sounded to me as if Mr. Christman's 21 comments were consistent with just taking it from here 22 now and seeing what can be done. You will have to
[ 23 decide, in the first instance, what effect it would have 24 on tomorrow's depositions. It depends upon who you are l
25 deposing and what the subjects are.
~
i l
O I
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (205i S54 2345
7219
) 1 It also, in terms of our ruling on contentions 2 which is somewhat severable from the discovery schedule 3 consideration, af fects the level of inf orma tion that
[}
4 would have been available at the time the contentions 5 were filed.
6 And we may allow some further time on some 7 contentions, and we will discuss it contention by 8 contention where the contention appears to be not as 9 spe ific as we would like to see an admissible J
10 codtention to be. But on the other hand, the reason for 11 the that might have been the previous lack of 12 information, in which case, it is not the pleader's 13 fault. However, we would not want to admit it into O 14 litigation now, even though we understand the pleader 15 might have been as specific as possible, because then 16 you willy-nilly end up with an issue in controversy i
17 instead of waiting and seeing if you can get a better 18 issue.
19 And that is consistent, somewhat, with my 20 remarks to the staff about how these are all different l 21 pieces of the puzzle that fit together, consistent with l
22 getting all of the facts out early so the litigation can 23 focus on the facts as specific as possible. And when we 24 get to some of those contentions, we will see which ones 25 they might be.
i l
l I
t ALDERSON REPORTING COMPANY,INC, l __
s 40o VIRGINIA AVE _, S.W., WASHINGTON D.C. 20024 (202) 554 2345 j
7220
() 1 In terms of Ziguring out what the changes are, 2 it may be that a copy having the interlinea tions and 3 deletions noted would be helpful. I don 't know if that 4 is essential, and it may be such a big job that it would 5 take a long time. It may be as to some of the changes, 6 for example, Volume T, that would be appropriate. I 7 don 't know. It may be that a meeting at which LILCO and 8 its experts would walk the county and intervenor's 9 counsel and experts through the changes would be a 10 better way to do it, and maybe some combination of the 11 two.
12 But we are goin; to put that mutual obligation 13 on all of the parties with a large part of the burden on O 14 LILCO to make clear what the changes are in some 15 cognizable fashion so that the other parties aren't 16 reduced to trying to figure it out by themselves. And 17 the documents you handed out this morning is a good 18 first step.
19 HR. CHRISTMANs Judge Brenner, we have already l 20 started the process of marking the changes on the copy 1
21 itself, and we should have all the volumes marked in 22 that manner on Thursday of this week , and we can deliver 23 them, not by mail but right away, to the other parties.
) 24 MR. SEDKY: Again, Judge Brenner, the critical i
25 point for us is really our experts, our people who are l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554 2345
7221
( 1 going to be feeding in this information on additional 1
2 contentions, or removing contentions. And there is a 3 high possibility that some of these have been mooted
(}
4 out. And we would urge LILCO to make delivery directly 5 to those individuals. .
6 And if the volume of material we are talking 7 about would probably take our office -- I don 't even 8 think we could do it inhouse, frankly -- two or three 9 days to get reproduced and out into the hands of the 10 people --
11 JUDGE BRENNER: Well.
12 MR. SEDKY: We can talk about tha t, I guess, 13 off th e re co rd .
O 14 JUDGE BRENNER : I think you had better 15 consider how you are going to get your experts together 16 with you so you can meet with LILCO, as opposed to LILCO 17 having to furnish things all over the country. When I 18 said we put the burden on LILCO, we didn't mean to hold 19 them captive.
20 MR. SEDKYa No, I didn 't mean to. I tho ugh t 1 21 it might be easier for them. I understand from what Mr.
i 22 Christman said that they have this process underway and 23 it will be included by Thursday. If they are going to l 24 be making 50 more copies for distribution, we would l
25 simply say make 10 extra and send then to our experts.
l i
i l
ALDERSON REPORTING COMPANY,INC, 400 EIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345 s
1 7222
() 1 Tha t is all. But we will do anything th a t makes sense.
2 Let's put it that way.
3 JUDGE BRENNER: Well, there are two aspects I
}
4 think, at least two aspects of this further review of 5 Revision 2. One aspect is identifying the changes as we 6 have discussed. Another aspect is even if you knew -
7 readily what all of the changes were, there are some 8 contentions, as we indicated generally, tha t we think 9 are not ripe for admission now. They may never be ripe to for admission.
11 But one wa y to go about it is for the parties 12 to focus on what parts of the plan purport to address
,13 those contentions. And I don't have to spell out the O 14 typical background meeting, but it would be: Paragraph 15 so-and-so gives you the information that you are i
16 alleging is lacking in the contention. And the county 17 would respond why they agree or disagree at that type of l
i 18 meeting.
19 And we had envisioned that type of process 20 would now become very focused between now and -- we are 21 going to propose, I think, August 13 which is a Friday, 22 appropriately enough -- to get a further respecification 23 not of all contentions, but as we go through it, of 24 particular contentions that we might put in that 25 category. And those two processes could take place,
' ~
O
~
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345 s
~
l 7223
() 1 obviously, in one and the same process, identifying the 2 changes as well as focusing on parts of the plan that 3 deal with the contention.
4 We are not going to rule orally and generally 5 on which contentions we are admitting. We are going to l 6 try to get a written order out first thing next week.
l 7 However, we will try to indicate where we can which 8 contentions are likely to be the subject of -- we are 9 not admitting it now; we may never admit it, but at 10 least we want the process to go forward in terms of 11 better focusing on what is involved before we make that 12 decision as to admit or not to admit.
13 As another preliminary matter which will be O 14 applied as we go through the contentions, we will have 15 to make some judgments as to which issues we should 16 handle in the first phase of emergency planning
. 17 litigation and which issues we either must defer or 18 should defer because they are likely to be affected by 19 further off-site plans. Whether they be the county's 20 plan or the interface between th'e county and other 21 o rg aniza ti on s, including LILCO.
l 22 We recognized this from the beginning when we 23 described the contentions we wanted now. We purposely
() 24 had the description arguably broader than the bare
. 25 minimum so we wouldn 't end up in a situation where l
l ALDERSON REPORTING COMPANY,INC,
- s 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7224
() 1 parties mistakenly withheld contentions that should have 2 been filed now, possibly because we weren't very clear 3 or because the line of demarcation itself was not clear.
{]}
4 Now that we have the contentions, we can look 5 at it with a bit of a better-focused lens. And there 8 may be some contentions which, without regard to whether 7 they would be admissible or not at any time, we'should 8 defer until we consider issues in the next phase.
9 On some of them we will entertain the parties' to views, and if the parties want to go ahead with them 11 even though we think maybe they could defer it, we would 12 be willing to go ahead on others. Even if the parties 13 want to go ahead, we may want to defer them, and we will O 14 try to indicate preliminarily which ones they might be.
15 One example would be the siren system in 16 general. If you look a t the Comr,ission's rule, it may 17 be that we don't have to deal with that at all. We 18 recognize that even under the proposed rule, however, 19 some of the litigation involving the siren system will l
I l
20 not be affected by what is to come in the off-site plans 21 in the sense of having to relitigate the ma tters. We 22 may have to put another piece together -- that is where 23 the border of the emergency planning zone should be, and i
24 so on.
25 So the parties might consider whether we l
l ALDERSON REPORTING COMPANY,INC.
l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7225
() 1 should go ahead with what we can now on the siren system 2 or defer. We recognize we expressly asked for 3 contentions on that, and I have indicated one of the
)
4 reasons why we proceeded that way rather than take a 5 chance on being too limiting in our first rough cut.
6 Another area that might be more suitable for 7 deferral involves some of the aspects of EP contention 8 5, for example, involving the protective actions taken 9 and the evacuation time effect on those decisions.
10 The decision can be made by' reference'to the 11 final rule. The proposed rule was arguably somewhat 12 more instructive in terms of the examples by reference 13 to portions of the emergency planning regulation, and is b 14 not inconsistent necessarily with the final ruling, even 15 though some of the detail might not be there.
I 16 There is some guidance in some Licensing Board 17 decisions. I have in mind the San Onofre decision that 18 was issued on January 11, 1982 at around page 232 19 through 234 of the SLB opinion. While I think when you 20 see it you will see a rather broad description, which 21 like all broad descriptions becomes hard to apply in the 22 harder cases, but they discuss the need to examine 23 on-site plans plus some of the off-site elements
( 24 necessary to a full evaluation of the on-site plan such
- 25 as that first channel of communication, if you will, l
0-ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
- _ = . _ _ _ _ . _ _ _ _
e 7226 O i from the ue111tr to the governmenta1 authorities.
2 Before we launch into the contentions, which I 3 promise we will do any moment now, the county and the 4 intervenors in the joint filing reserved two issues.
5 One of them regarded'the iodine monitoring which is 6 subject to the agreement, a nd as I recall, the last 7 inkling we had of what the status of that was that LILCO 8 had not yet completed the information it was going to '
r 9 furnish. Is that accurate?
10 NE. REVELEYa I thought we had furnished it, 11 Judge. ,
12 13 O 14 ,
15 16 17 18 I
i 19 20 21 l
22 23 24 25 l O l
I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7227
()
1 JUDGE BRENNER: You may have, and maybe I 2 don't know about it.
r~T 3 MR. LANPHER: Judge Brenner, last week Mr.
V 4 Early talked to me off the record and indicated there 5 had been some delay in the completion or typing or 6 whatever of the iodine monitoring materials, pursuant to 7 this study or the analysis tha t had to be done, and 8 asked if we had any objection to them taking some extra 9 time. And we interposed no objection. I mean, we 10 didn't bring this up on the re co rd .
11 My guess is that that is probably going to be 12 delivered almost any day.
13 MR. REVELEY: You don 't ha ve it ye t?
ID
- I do not have it yet. Mr. Early 14 MR. LANPHER:
15 brought it up last week, and he was here earlier. I 16 don't like to represent what he said.
17 MR. REVELEY: I will find out where it is and 18 let you know.
19 JUDGE BRENNER: Well, I have heard enough.
20 The thought would be that if we do end up using this 21 August 13th da te f or some of the contentions, that 22 hopefully that same timeframe would be compatible with 23 deciding whether or not there need be a contention on 24 iodine monitoring.
25 Incidentally, in indicating whatever date we t
(~)
l NJ l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., W.8SHINGTON, D.C. 20024 (202) 554-2345
7228
() 1 choose -- f or now , let 's suppose it is. August 13th --
2 consistent with the July whatever it was initial filing
(} 3 date for contentions -- I guess it was --
4 MR. SEDKYs July 6 th I believe was our first O amended --
6 JUDGE BRENNER: I as thinking of the initial 7 date, which I guess was June 22nd . The idea was not 8 just to file something tha t the staf f and LILCO are 9 seeing for the first time. And we expressed some to disappointment then that due to whatever, including 11 logistics, LILCO and the staff did not get the time we 12 had intended that they get.
13 HR. SEDKY: We handled that, I believe, O 14 although maybe not to everybody's satisfaction. But on 15 the July 6th filing, we had met ahead of time, and at 16 least they were aware of what we were going to do, and 17 hand-delivered drafts and so forth, and we will do it 18 again on wha tever date is chosen.
19 JUDGE BRENNER: Well, on this, say, August 20 13th filing because an important part for the filing is 21 going to be the product of these meetings and further 22 processes that we envision, it will be more conducive to 23 everybody knowing before the 13th what is going to be
) 24 filed, and then we would require wri'tten response from 25 the staff and LILCO with a short delay. We would be O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7229 m)
(_ 1 thinking of the following Tuesday, which would be the 2 17th.
3 But the idea would be that they would have 4 auch more time than just that gap between the 13th and 5 the 17th. And it is just not going to work if only one 6 party is in the meetings and the other party has to be 7 contacted by phone, and then there ate sepa rate filings 8 on contentions for Mr. Shapiro and that type of 9 problem. We recognize the logistics and the timeframe to problems that were involved before, and we are not 11 c ri ticizing them today. The point is next time, it 12 needs to work a little smoother because we are getting o
13 more refined.
O 14 There was another area of reserved contentions 15 tha t the Board did not fully understand. And as I 16 recall the filing, it indicated that con ten tions ,
17 possible contentions, would be reserved on the technical 18 support center. Upon completion of the center and --
19 wha t did you mean? That the center had to be built 20 before you could file a contention on it?
21 (Counsel for Suffolk County conferring.)
22 MR. SEDKY4 That is correct; that we would 23 like to take a look at the real world, and we may have
( 24 some conten tions as to wha t ~ the center does and doesn 't 25 do and whether it assists in the planning efforts.
O l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASH!NGTON, D.C. 20024 (202) 554-2345
7230
() 1 JUDGE BRENNER: Is there something about it 2 that you are worried about in particular?
3 HR. SEDKY We don't know what it is. I mean,
[}
4 that is one of those items, and it may raise a legal 5 question. But to take one of the areas that I think we 6 would all agree is simple and that is one of our 7 con tentions is we did not have a complete list of EPIPs, 8 and evidently now there is such a list and we want to 9 take a look at them and see if we have any further 10 contentions on that basis. And the center is -- we 11 don't know what to ask for until we see what is there.
12 JUDGE BRENNER: They are not quite the same.
13 There is a difference between seeing all of t,he plans O 14 and also, even the part of the puzzle as to the 15 feasibility of implementing those plans which might be 16 affected by the exercise, and having to wait for a 17 physical structure to actually be built to know what is 18 going to be involved with respect to that complete 19 structure.
20 I took it from the filing th a t th a t was not an 21 area of agreed reservation among the parties; that is, 22 the county and the intervenors unilaterally were 23 reserving that, unlike the iodine subject.
( 24 MR. SEDKYs I gather that is correct, Your 25 Honor, that that is the position that the county and the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7231
() 1 intervenors are ta k in g . And I assume it is not acceded 2 to by the applicant and the Commission staff.
{} 3 JUDGE BRENNER4 Unless you can convince us in that August 13th filing that there is something very 4
5 special about needing cespletion of the physical 8 structure that you are considering raising an issue on 7 or are concerned with, --
8 MR. SEDKYa We will identif y that question for 9 the Beard more fully in whatever filing on whatever date 10 that filing is filed.
11 JUDGE BRENNER: In essence, I think you are 12 going to need a particular contention f ocused on what 13 you are concerned about, and then we will decide whether 14 or not it can be litigated prior to completion. And 15 that might be one possible approach.
16 HR. SEDKYa Very well.
17 JUDGE BRENNER: Here again is something that 18 might benefit from discussion. Even if you do not end 19 up agreeing ultimately, maybe they can show you 20 something once you tell them what you are worried about, 21 and then you can see if you are still troubled or more l
22 troubled or less troubled.
23 Unless the parties have something th a t we need 24 to discuss'first, we are ready to go through the 25 contentions. Some of them we can have much less O-ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE S.W WASHINGTON, D.C. 20024 (202) 554 2345
I 1
7232
() 1 discussion on than others, I belie ve .
2 I should state for the record, we have taken
{} 3 into account in our preparation for this discussion 4 today the first amended filing of contentions dated July 5 6th, LILCO's response dated July 6th, the staff's 6 response which was' dated July 9th and which we 7 physically set eyes on upon our return to the office 8 first thing on July 12 th , the Suffolk County response on 9 July 12th. And we have had discussions already and 10 understand why all of the papers don 't match porfectly, 11 since people working with draf t contentions or draf t 12 objections anyway, and we will handle that as we go 13 through it. That presents little or no problem.
O 14 And we also have Mr. Shapiro's response of 15 July 9 th on behalf of the North Shore Coalition.
16 Incidentally, in terms of open communication, 17 Mr. Shapiro in his response indicates that he did not 18 receive LILCO's July 6th objections until July 9th.
19 Regular mail just isn't going to do it in this 20 proceeding on these types of things, and we have 21 discussed that before. We appreciate the fact that Mr.
22 Shapiro was able to get a response out on the same day 23 he received LILCO's response, and he should have
('\
\_/ 24 rsceived the July 6th response earlier than July 9th.
25 Contention 1 has been captioned by the county O
' ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S W., WASHINGTON, D.C. 20024 (202) 554 2345
7233
() '1 -- and just for shorthand we will refer to those as the 2 county's contentions. We recognize that the county is
(} 3 4
joined by NRC and Suffolk County, but we are not going to hear arguments from counsel for three different 5 intervenors.
6 The title, appropriately enough, in the 7 Board's view, the caption given to it by the county is
~
8 "Overall LILCO Plan Inadequacy." It seems to us 9 preliminarily to be a catchall type contention, and 10 where there are specifics, they are covered by other 11 contentions.
12 I am not saying every aspect of it is covered 13 by another contention, but where there are not specific
( contentions covering aspects of it, it seems to be a 14 15 rather broad catchall; not the kind of thing that 16 factual litigation can focus on.
17 MR. SEDKYa May I address that?
18 JUDGE BRENNER: Yes.
19 MR. SEDKY: It is broad in the sense that it 20 is a generic type problem that we perceive with the l 21 plan. It does identify specific responsibilities of the 22 applicant as to which of what we have called the real 23 world charac te ristics ough t to b e considered. And so, I 24 am not saying that we are just vaguely asserting that 25 these people have closed their eyes; they have not.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554 2345
7234m
() 1 The particular responsibilities that I have 2 identified in conten tion 1, that they have not met 3 specifically the public notification obligations of the 4 applicant, the public education obligations, the 5 accident assessment and monitoring obligations, the 6 prohectiveactionrecommendationsandtheevacuation 7 time estimates, we will want to put evidence and 8 testimony on those specific obligations of the applicant 9 to demonstrate what particular facts and consequences 10 that we would urge flow from those facts apply to the 11 applicant's obligation to furnish a plan that furnishes 12 adequate protection.
13 It is really a common sense approach that says O 14 that you have to put your sirens where the people are 15 and not where they are not. It says that if there is a 16 tendency on the part of poor people and under-educated 17 people not to respond to emergency notifications, and if 18 there is evidence of that, that those kinds of issues 19 should be considered.
l 20 We don 't 'think it is so broad tha t it can be l
21 litigated or that the applicant and the staff are l 22 unable, -- or the Board, for that matter -- is unable to 23 determine just what is it that we intend to show during l \
24 the course of the proceeding.
25 N a tu rally, as counsel, we considered looking I
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7235 '-'
() 1 at each specific contention and each specific 2 subparagraph of every rule, and putting in a contention 3 that the applicant did not consider the real world, as I 4 cha racterized that contention. And I am afraid we would 5 have ended up with an objection that we have on some 6 other issues, and that is namely, if you have got a 7 problem with traffic congestion, have a contention that 8 deals with traffi: congestion and we will deal with the 9 subissues that flow from that as one matter.
10 We could, if it would be more convenient to 11 the Board and the parties, simply go through every 12 single contention we have, every single obligation we 13 perceived that the applicant has, and set forth the same O 14 list. I am not sure tha t would get us anywhere. The 15 question is whether this Board is prepared to hear 16 testimony on these kinds of questions: people's 17 education, their background, what they are likely to do I 18 in the event of various notifications. And we contend l
t 19 that it is a legal and evidentiary matter and we are 20 entitled to put in that kind of testimony.
l 21 JUDGE BRENNER: Well, there are a couple of l
22 things involved in what you just said. It may be that 23 some of these, to the extent we think litigation is
) 24 permissible on them at all, would be litigated during 25 the off-site phase because you need to know too much of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
7236-~
() 1 what we don't know as yet, and that is, the full plans 2 for the off-site responses on the part of the general
{) 3 public.
I would respectfully suggest, Your 4 MR. SEDKY.
5 Honor, that certainly, we don't view it that way. That 6 there is a plan that is on the table, and this is a new 7 plan now on the table. It makes representations as to 8 what this spplicant is prepared to do and is going to 9 do, and we want to -- whatever portion of that plan is 10 decided to be litigated by this Board, we will intend to 11 introduce evidence on such things as traffic congestion.
12 The fact that people don't read signs -- that 13 is a fact. That under-education people tend to not O 14 respond to emergencies; the fact that automobiles 15 provide virtually no shelter from radiation. All of 16 these things that have a direct bearing, as we see it, 17 on the on-site emergency planning, having nothing to do 18 with the off-site plan.
19 We are not contending that this is not an old 20 revised SOC 1 and 2. We are not contending at this 21 stage that these should be extended or that it ought to 22 be reconfigured in some fashion. All we are saying is 23 that the applicant has certain obligations, and we 24 intend to put on testimony and evidence tha t affects 25 directly those oblications.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
7237
) 1 JUDGE BRENNERs Well, I am not sure how, for 2 example, we could divorce emergency evacuation 3 alternatives and f acilities, putting aside the question
(])
4 as to whether that is sufficiently particularized, how 5 we could address that separated from the look we are 6 going to have to have later at what is going to be 7 involved in evacuation routes and estimated times, and 8 in addition, something as broad and aguably as vague as 9 LILCO topographical and geographical characteristics. .
10 Sure, it could affect elements of LILCO's plan 11 if we knew what it was you were talking about by that 12 phrase, but it is not very well focused.
13 MR. SEDKY Well, Judge Brenner, these are 14 matters that are in their plan. And if it is the 15 Board 's -- a nd I am not sure, maybe perhaps I am 16 misunderstanding -- but if the plan is going to be 17 litigated piecemeal; in other words, if we are going to 18 look at this part of the plan and litigate that and we l 19 are going to save the other part of the on-site plan 20 consideration for the off-site plan, perhaps that is one 21 way of doing i t. And then we just have to focus on what 22 is litigable a t this point.
i 23 And maybe the only things that are litigable l
' 24 at this poin t, if the Board is not going to consider 25 testimony such as traffic congestion is: are there O
f l
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C 20024 (202) 554 2345 f
7238
\ 1 sufficient EPIPs -- but not basically, whether this 2 plant is capable of being implemented, which is the
{} 3 fundamental regulatory standard.
4 And our overall contention insofar as EP1 is 5 concerned -- and I am sure the Board will see this 6 thread throughout the other contentions -- is that in 7 order for a plan to be capable of being implemented, 8 inherent in that notion is dealing with the real world.
9 And whatevar aspects of the plan that are being tested to with respect to that standard must be dealt with.
11 I would add another thing, and we can deal 12 with each of these issues -- demography, so cio-econo mic 13 characteristics and so forth. But taking, -- for O 14 example, the question of traffic is required, as I read 15 the regula tions in NUREG-0064, to be considered by the 16 applicant in the e va cua tion time estimates. And we 17 assume that they have taken traffic matters into 18 account. I believe that the particular appendix 19 requires them to consider the time of day, to consider 20 the climatic conditions, all with a view to the impact 21 on traffic.
22 What we are also saying is that if you know, 23 if you have a reasonable certainty that no matter what k 24 you tell the public about wha t is going on that half the a
25 island is going to hit the streets, that is something O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA A*vE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7239-() 1 tha t you have a responsibility to consider in developing 2 your plan. Tha t is all.
3 JUDGE BRENNER: I guess we envisioned that 4 something comes closer to the next phase of emergency 5 planning, as something tha t would necessarily involve 6 matters beyond LILCO's ability to control, even though 7 they may have some thoughts as to what their plans might 8 be. Maybe I should ask LILCO if they think their plan 9 as it exists would be sufficient to litigate matters 10 such as evacuation times and ef f ect of traf fic 11 congestion and that type of thing.
12 HR. CHRISTMAN Let me say at the outset that 13 these do look an awful like off-site or Phase 2' issues O 14 to me. To the exent that LILCO used an evacuation time 15 estimate in its plan, it seems to me that we can 16 litigate that, how we did it and whether it is adequate, 17 at an early stage.
18 But I am most anxious and most eager to avoid 19 the problem of litigating that at the first stage, and 20 then having someone come in in six months with a whole 21 lot of off-site evidence that they say, and then that 22 requires us to reopen that issue.
23 MR. SEDKY It is part of their plan. I guess
() 24 all we are saying is we are prepared to litigate 25 whatever is in their plan that we feel is inadequate.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7240 -
() 1 JUDGE BRENNER: Well, there are two concepts 2 involved tha t affect each other, as we have indicated 3 earlier. We are striving to make the final cut af ter 4 this session as to what should be litigated now and what 5 should be litigated later. And if we sometimes launch 6 into shorthand labels such as on-site and off-site, I 7 think we all recognize that the dichotomy is not that 8 simple. It is a matter of looking at the particular 9 issue. Where a contention is quite broad, that could 10 aff ect the judgmen t.
11 That is, that if there are no particulars in 12 there that.would key necessarily to this on-site 13 category, it may be too broad to ever litigate. But in O 14 any event, not specific enough to ascertain that it is i 15 necessary to litigate in the first phase. And it is not 16 inconsistent with the desire to consolidate different 17 contentions for which you would need the same proof; 18 say, traffic congestion, to also say that a phrase like 19 LILCO topographical and geographical characteristics is 20 too broad to understand what would be litigated under i 21 that. -
22 So let me point that out. I should give LILCO 23 an opportunity for a broader response because you only j () 24 responded to my particular question.
25 MR. CHRISTMAN: My response really is to
()
l l ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7241 1 merely repeat your two remarks you made. Which is, 2 number one, this appears to be a catchall contention.
3 If there are points in it that are not covered by other gg 4 contentions, it seems to me it should be focused down to 5 those points that are not covered. Otherwise, 6 everything else, it seems to me, ought to be dropped.
7 The second observation -- and this was the 8 basis of our not particularized objection -- is that, 9 again, the words " characteristics" which are used 10 throughout are extremely fuzzy, and we really don 't knov 11 what characteristics they are talking about. Although 12 in their response to our objections they perhaps went a 13 little bit f arther to particul'arize than they did in the 14 contention itself.
15 And perhaps a rewrite along the lines that 16 they began in their response to our objections that 17 specifies what conditions, what characteristics they are 18 talking about, would be helpful.
19 MR. SEDKYs We do not view this as a 20 catchall. If I had indicated that in any fashion, I 21 certainly did not intend that.
22 JUDGE BRENNER: No, that was my remark just to 23 achieve the purpose that it achieved, and that was to 24 stimulate your comments.
25 MR. SEDKY We don't view this as a catchall.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7242 l
() 1 We view that as it addresses three specific 2 responsibilities of the applican t -- I am sorry, more 3 than threes public education, accident assessment and 4 monitoring, protective actions and, I guess, five is a 1
5 subhet of four, and that is the evacuation time 6 estimates. All of these matters are in their plan. I.
7 mean, it is not as though we are asking them to put it 8 in; it is in their plan and we have contentions that say 9 that they are inadequate because they didn't consider 10 the real world. ,
t 11 JUDGE BRENNER: Let me use subpart 5 as an 12 example of something, and then I will give the statf an 13 opportunity for a full response to all aspects of the O 14 discussion.
15 Arguably, subpart 5 is a little more 16 particular than some of the other subparts. At least 17 there is a better handle on what would be litigated 18 under it. Assuming that that issue is something tha t 19 need be considered, and only assumin g at this point, 20 whether you have to take account of differences in the 21 way dwellings are constructed in order to have input 22 into the decision as to whether to shelter or not, 23 assuming arguendo you need to do that type of analysis
( 24 and assuming that is what is being called for by this 25 subpart, is that the type of thing that we should go
)
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7243
() 1 ahead and litigate during this first phase, which is 2 primarily f ocused on the on-site determinations with
(} 3 some interface? Or is it something that we should defer 4 until the second phase? And I am using this as an 5 example because arguably, it may start to f all in that 6 grey area.
7 Maybe I should ask LILCO first.
8 MR. CHRISTMAN: That, again, looks awfully 9 auch like an off-site issue to me that could be deferred.
~
10 JUDGE BRENNER: Let me emphasize, even if we 11 so label that ultimately, I am not criticizing the 12 filing of it. We purposely, as I indicated, stimulated 13 the filing.
O 14- MR. SEDKYa I guess I don't mind 15 cha rac te rizing this as an "off-site" issue. I mean, if 16 you are saying th a t this may have something to do beyond 17 the site of the facility, and perhaps even beyond 18 whatever EPZ is ultimately established, tha t is not our 19 point. .
20 Dur point is that they have in their own plan, 21 a t least in 'the implementing procedures, they take 22 cognizance of the different types of materials, and they 23 instruct their notification personnel in their plant to, 24 in making these esiculations and advising the county and 25 other response personnel to consider these matters. And O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7244 s
1 I have a hard time understanding how, if that is a f act, 2 that is an issue. And it is in their plan.
3 Either we say okay, we are not going to 4 litigate that aspect of the plan, so whatever the court 5 decides on topics 1, 2, 3, the plan is still an open 6 plan and the plan as a whole is not going to be 7 litigated until the county plan is ready. Perhaps that 8 is a sensible approach.
9 I had understood that we were litigating the to LILCO plan. And if we are litigating the LILCO plan, 11 this particular issue is in it.
12 JUDGE BRENNER: All right. You have supplied
~
13 a little more than is supplied in subpart 5 as written, O 14 and that is, you have keyed it in in terms of LILCO's 15 plan to their protective action recommendations and how 16 they go about making that decision.
17 MR. SEDKYa If there is a problem with that, 18 Judge Brenner, and if they have really had a problem 19 with understanding that -- I frankly don't think they 20 have; we have discussed this several times --
21 JUDGE BRENNER4 Well, it may be our problem.
22 MR. SEDKY: Well certainly, we would be more 23 than happy to recast the entire EP1 to make sure that 24 the entire world is aware that we are not talking about 25 trying to litigate conditions that might impact the O
ALDERSON REPORTING COMPANY, INC, t
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
7245 r 1 county's obligations or the public's obligations. We 2 are only litigating issues that affect LILCO's own
{} 3 obligations as reflected and set forth in LILCO's own 4 plan.
5 JUDGE BRENNER: There is another contention 6 tha t sounds a little like that subpart 5, I thought, and 7 maybe I am remembering incorrectly. But if we get to 8 such a contention, remind me. And it may be that that 9 may be an example where contention 1, subpart 5 fit in 10 logically with the organization of the rest of 11 contention .1, but also fits in with a more precise point 12 keyed to the protective action decisions.
'15 MR. SEDKY: I have no doubt that that does O 14 happen.
15 MR. LATHAM: . Judge Brenner, you are thinking 16 of EP5, I think.
_ 17 JUDGE BRENNER: Yes. Thank you. I am not 18 saying they use the same words, but it seems to embrace 19 the same concept.
20 All right. I promised the staff an 21 opportunity if it wants to say anything f urther on 1.
22 MR. BLACK: With respect to this contention, I 23 don 't think I could say anything f urther than wha t I (G
_/ 24 stated in our written response, and I haven't heard 25 anything further from the county today which would ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
724 0L. -
( 1 change that response.
2 But initially, I think I nould like to note
() 3 something now which the staff believes is a f undamental 4 flaw in the county 's perception at this time of the 5 Commission pleading practice with respect to 6 contentions. And I just might note that on page 13 of -
7 the county's amended contentions -- let me see if I have 8 got it right.
9 ( Pause. )
10 I might have the page wrong. Wait a second.
11 It was on page 13 or page 12 of their response to 12 objections of LILCO and the NRC staff. They note at the 13 bottom of the page that the burden to prove the adequacy 14 of the emergency plans at this point is on LILCO, and 15 they cite 10 CFR Section 2.732.
16 First of all, we would note that the cite to 17 that particular regulation I don ' t think is relevant in i
i l 18 the context of pleading contentions.
19 JUDGE BRENNER: They might mean 2.742. I may 20 be wrong off the top of my head, too.
21 MR. BLACK: I am not certain that is the right l
22 citation either. But at least it is the staff's belief I
l 23 at this point that with respect to pleading contentions
! T l J 24 -- and this comes af te r many , years of ha rd knocking' of i
l 25 heads with intervenors and Board members and what have l
ALDERSON REPORTING COMPANY, INC, I 400 V;RGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7247
<m
(_) 1 you -- that the burden of pleading the requisite basis 2 and specificity for contentions is upon the intervenor.
{} 3 And so, throughout the staff's objections, we 4 have noted that the intervenor has not met the 5 requirement set forth in Section 2.742 for meeting the 6 basis of specificity, and I think that is a f undamental 7 difference between the county and the staff at this 8 point. We say that the burden is upon the intervenor to 9 show that basis of specifity, and I think the county is 10 saying no, they don't have to prove the requisite basis 11 of specificity; it is up to LILCO to prove the adequacy 12 of their plan and to show that the plan at this point, 13 in the contention pleadings stage, is adequate.
O 14 And I think that this shifting of burden forms 15 a fundamental reason why the staff has objected to 16 certain of these contentions. And we want to know why 17- and how, when the county says that the plan is 18 inadequa te because it doesn 't, let's say, discuss 19 traffic congestion, -- we want to know how and why the 20 plan is not adequate when it talks about traffic routes 21 and what have you.
22 In most instances, we want to see a little bit 23 more pa rticularity in the contention itself , with what
( 24 traffic routes, let's say, are going to be congested, 25 why they will be congested and what have you. And we O
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
. 7248
() 1 think the burden at this stage is on the county to show 2 that.
3 And that common thread will run th'roughout the 4 staff's objections, and I just wanted to initially note 5 tha t .
6 JUDGE BRENNER: Let me indicate that Mr. Sedky 7 has the right citation for his point. Staff's point is 8 that -- Mr. Sedky's point is inapposite to the 9 propositions for the reasons you indicated?
10 MR. BLACK 4 Yes. Tha t particular regulation 11 deals with action practices.
12 JUDGE BRENNER: No, it is burden of proof.
13 MR. BLACK: Burden of proof on motions where O 14 the proponent before the order has burden of proof.
15 That is that I don't think that is relevant in 16 contention practice, so to speak.
17 MR. SEDKYa If I may, Your Honor. Frankly, I 18 don't the question of burden of proof -- there are two 19 issues here that Mr. Black has identified. One is the 20 degree of specificity with which an intervenor is 21 required to set forth a contention, and I would like to 22 address that.
23 On the question of burden of proof we
( 24 obviously seem to have a difference of view, but I don't 25 think that is before the Board at this time.
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7249
() 1 In the Susquehanna case, the Pennsylvania 2 Power case that is cited in our brief, I would just like 3 briefly to read one sentence out of that, or two
[}
4 sentences. It says, " Pleadings and contentions no 5 longer describe in voluminous detail everything the 6 parties expect to prove and how they. plan to go about 7 doing so. Rather, they provide general notice of the 8 issues. It is left to the parties to narrow those 9 issues through the use of various discovery devices so 10 that evidence need be produced at the hearing only on 11 matters actually controverted."
12 I am not suggesting to M r. Black or to the 13 Board that in your federal rule notice, pleading is O 14 sufficient. On the other hand, you can -- I would 15 respectfully suggest that the Board cannot expect a 16 pleader to, in effect, make a proffer of proof at this 17 stage.
18 The county has made a good faith effort 19 through its consultants to identify areas that they are 20 extremely concerned about in this plan. They have gone 21 to the trouble of retaining people to look into issues 22 tha t they believe are pertinent to the on-site plan, 23 including a survey that was released last week as to the
( 24 likely ramifications of even the lowest grade of notice 25 to the public.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AL S.W., WASHINGTON, D.C. 20024 (202) 554 2345
_. __ _ _ - - - - - _ _ _ ._ =_ -. - - . . _-
7250 O i and I .o 1d suggest res,ectro u , to bots tue i
2 staff and the Board tha t we can't be in a position where 3 before our contention is going to be admitted, we have 4 to tell you that block 15 on street X, Y and Z is going l 5 to be impassable. It is just an impossible -- no pun f 6 intended -- burden.
7 1
4 8
9 10 11 12 4
13
- O 14 15 16 17 18 .
19 20 l
[
21
~
' 22 23 I 24 25
~
, O i
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 j
7251
() 1 JUDGE BRENNER: Well, I think it is not very 2 productive to discuss it in the abstract. It is a 3 matter that comes down to, given the nature of the 4 issue, what is a reasonable basis in specificity to put 5 parties on notice as to what is going to be litigated.
6 Some of these, as we go through it it may be the product 7 of an information gap where we think, through the help 8 of LILCO -- as to the past burdens of just looking at it 9 yourselves, with the additional help of LILCO you have 10 had productive meetings already with the Staff; that we 11 can better focus without necessarily ruling the 12 contention in our out.
13 That is, we could give you greater O 14 opportunity. There are other factors at work here, 15 too. The portion you cited went to the initial 16 admissibility way a t the beginning of the proceeding, 17 which is often a year or two in advance of the 18 litigation. o 19 In the context of the emergency planning 20 issues in this proceeding, we have a much narrower time 21 f rame between conten tions and litiga tion. In 22 recognition of that, we did not require contentions 23 before any discovery or settlement type meetings. In
() 24 fact, we encouraged quite the contrary, although we 25 recognize, of course, further discovery will take ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7252
(') 1 place.-
2 So that affects the level of possible 3 specificity, too. Tha t is, without regard to whether a 4 contention sight be marginally admissible, it would be 5 better to get the better focus now where it's 6 reasonable.
7 Now, it may be that what the County considers 8 to be required information is simply not covered at all 9 by the plan. That type of contention would arguably be to entitled to being admitted without a lot of specificity, 11 because there is nothing to hook onto.
12 HR. SEDKYs There's nothing to'be specific 13 about. -
14 JUDGE BRENNER: That's right. And there are i
15 these other conflicts and concepts.
16 HR. SEDKY: On contention 1, we would have no 17 hesitation to rework that with the input of the Staff 18 and the Applicant to make sure that our fundamental i
19 point, which is the specific obligations of the 20 Applicant with respect to their onsite obligations are 21 def ective because of these conditions. And we would be 22 happy to spell out in somewhat greater detail, I 23 suppose, why each particular kind of condition would l
() 24 have what kind of impact on th a t obligation.
25 JUDGE BRENNERs We will consider it. I don't I
ALDERSON REPORTING COMPANY,INC,
(
400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554 2345
7253 I want to preclude the possibility that a given contention
(])
2 may be so broad as to be not entitled to further 3 working.
4 MR. BLACK Judge Brenner, could I make one 5 more comment, lest the remarks that I made earlier are 6 construed as a hard-line Staff position on the leading 7 basis for specificity?
I 8 JUDGE BRENNER. I thought the hard line was a 9 result of the head-knocking .
10 (Laughter.)
T 11 HR. BLACK: It also has taken some laxity in r-12 this psrticular instance where, through discussions with 13 the County, the Staff has gained some perception of O -
14 exactly what their problems were with the onsite plan.
15 And even though the plain wording of their contentions i
16 may draw an objection as to the basis of specificity, t
17 the Staff did not object from the standpoint, we 4
18 understand what the County's problems were and we felt
"~'
19 that it was a litigable concern and therefore we entered 20 no objection.
21 And so it is a process of give and take. It 22 depends upon many factors, and it just doesn't a
. 23 necessarily boil down to the black and white of the
() 24 printed' page. It is a pr'ocess of really trying to 25 understand what the concerns.a re and trying to address O
s
,., ALDERSON REPORTING COMPAtJY INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
7254 !
() 1 them and knowing that they can be addressed.
2 HR. CHRISTMAN: Judge Brenner, 1 just would 3 like to observe that we tried to go through this process
() 4 during meetings with the County and we had urged that 5 this sort of specificity be included in the 6 contentions. And we didn't get very f ar, or at least we 7 djdn't succeed in getting it specified to our 8 satisfaction.
9 MR. SEDKYs Gee, I hate to get into this, Mr.
10 Christman --
- 11 JUDGE BRENNERs Well, let's not.
12 MR. SEDKYa I think that's an ,unf air 13 characterization, particularly with respect to 14 contention 1.
15 JUDGE BRENNER: Wait a minute. It doesn't 16 matter. I think I understand the process that goes on, 17 and that is one reason we are meeting here today, so 18 that whatever guidance we can give you, even before our l
19 written order, we'll try to.
20 There is a tonsion, without regard to the 21 people involved, in the difference between being so 22 specific that you get pages and pages of testimony too 23 far in advance and the tension the other way of not
() 24 being specific enough to understand what you are trying 25 to litigate . And it is very much, notwithstanding the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
i 7255 1 guidance of the regulation, a sui 7 generis determination, 2 depending upon the posture of the proceeding _and wh a' t c
3 inf orma tion is avallabIe and wha t the issue,is. .s O 4 I think Mr . Shapiro in his filing articula ted* ~' U
.. ~ -~ ;
5 with some indications of his' frustration what th a t J
~
6 tension is, and we are going to try to deal with it as ,
. ^ '..
we go through it issue by is5;:e.
7 - ,
a We're going to break'for lunch,II a moment, ,
n 9 but I want to leave you with a thought on EP2, which I ' '
. ws 10 think we are ready to turn to. This involvesethe prompt ,
i ,
11 notification system, rhich is basically'but not' .
12 exclusively the siren system. , ,, r., '
., . - # f ,'s 13 A and B of that contention would be an' example % . ,f,,
pd 14 of two subparts that we would be willing to litigate now 15 if the parties want to, but may be an,f(cue that'does f 16 not have to be litigated now. And you can think about 'r /
17 that one when we come back.
18 In other words, it is possible to litigate it
~
19 now, but it may not be, necessity to litigate it now.
20 Tha t is just d istin guished from the other category that_
21 we will get to, t h r.t it may not be possible to 22 meaningfully litigate it now, and,in;another category, i ~ ,,s . .
23 that maybe we could litigate it now but it looks like,it O 24 ou14 de === cent 1*1e or detter ereeea t-e a <a't 3= t
,a 25 have to waste our time litigating it as the issuu"isf ,
~ )'
9 i
- . :p ~.
u
- lL 4 e
- ALDERSON PEPORTING,00l#APQ', INC. < ,
460 VIRGINIA AVE.,3.W ,'h% tut + BION D C.,20024
, +
(2021 L54-2345 p . <" , - .- -
l L
</ 7256
, -+,
1 commonly phrased. j l
2 Maybe I will give you a preview. Subpart C is w,-
3 an example of that last category of EP2. We were going i i /,_
O 4 to take a relatively short lunch bz.sak, but the parties 5 hav.s to think about some things on their own and talk 6' tohether, particularly the Staff, at some point before 7J'the end of the day, and we would like some indication of
, 8 wha t scheduling considerations the Staff now considers 9 m ost a ppropria te.
.~.
$0 We will take a longer break in view of those f 11 considerations, but we will try to move more quickly .
12 ' once we come back and now that everybody ha s handled the 13 dvocacy side of it to some extent.
p .
- v 14 We will come back at 1:30.
', 15 (Whereupon, a t 12:05 p.m., the hearing was J
< 16 recessed, to reconvene at 1 :30 p.m. the same day.)
- - 6 17 i
. 9 .
> s 19' 20
.+~
21
,s 22 23
,a l
25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7257 1 AFTERNOON SESSION
[}
2 (1:35 p.m.)
3 JUDGE BRENNER: We are back on the record and f,
V 4 as requested, we took some additional time so that 5 parties could complete their meetings. If you haven't 6 resolved your differences during the break, we are 7 prepared to proceed with the afternoon. Is there a need 8 f or an interim report at this time or should we continue 9 contention by contention?
10 MR. SEDKY: Your Honor, we had a very brief 11 opportunity to meet with the LILCO a ttorneys and to talk 12 about the means by which the new materials in the plan 13 would be furnished to us and the consultants, and ther
(~) -
k/ 14 agreed to furnish marked pages to us and to certain of 15 our consultants so that they would be received by 16 Friday, this Friday. We asked tha t our consultants be 17 given a week to review the new material and that, based 18 upon that review, we would identify for LILCO the 19 witnesses whosa testimony we would want to take by 20 deposition and, during this period, again to move the 21 proceedings forward as quickly as possible. We would be 22 informally asking LILCO for any docuLents that we may 23 vant as a result of the changes and that we would work
() 24 on a schedule of depositions that would begin 25 approximately August 10th.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
7258
(} 1 I was unsure, Judge Brenner, whether the Board 2 had contemplated, assuming you are considering August 3 13th as a deadline for filing revised and refined O 4 contentions, whether we were to be undertaking discovery 5 prior to that or wait until we see what is going to be 6 -- what flows out of that process.
7 JUDGE BRENNER: No, don't wait.
8 MR. SEDKY We should go f orward, then?
9 JUDGE BRENNER Yes.
10 MR. SEDKY: The earliest we can do it, really, 11 as a practical matter, then, af ter we have gotten our 12 consultants reviewing the materials, that we would start 13 the very next day, which would be about the 5th -- in
(- 14 other words, givino us an opportunity with our 15 consultants and say, okay, what in this new material 16 should we be looking at, and that would put us into 17 Wednesday the 4th. I believe we would be prepared to go 18 forward then on the 5th.
19 Mr. Christman has in sisted tha t we go on the 20 same basic breakneck speed that we have been planning to 21 go forward on during this period, which would have been 22 nine days. Frankly, I think that is awfully tough. In 23 addition, they are now contemplating doing their
() 24 discovery during the same period, in other words 25 beginning with the 5th of August, which would mean that O .
ALDERSoN REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
1 l
7259 l
() I we would have two and three depositions going on at the 2 same time, which I respectfully beg that we just not be 3 required to undertake,'and that we be permitted to take 4 one deposition per day.
5 HR. CHRISTMAN: Judge Brenner, et position is s
6 that we are -- this breakneck speed is being delayed by 7 several weeks on essentially no grounds at all, since we 8 believe that the changes, when reviewed by the other 9 side, will make little or no dif ference in their 10 discovery.
11 And so we find the pace not so breakneck.
12 JUDGE BRENNER: Let me make sure I understand 13 this. Under the schedule that LILCO wants, you're to O 14 complete depositions by August 5th?
15 HR. SEDKY: No, we would commence. I guess 16 really the only issue in dispute right now, at least as 17 I understand it -- and maybe there is another dispute 18 tha t hasn' t been articulated -- is that assuming that 19 depositions begin August 5th, how, if we stick with the 20 same number of people that we have identified to date, 21 tha t is ten individuals, if they stick with the same 22 number of people that they have identified to date, that 23 is an additional six -- the question is, what reasonable
() 24 schedule can be ad opted to accommodate the taking of 16 25 depositions.
O ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554 2345
7260 And I guess that is something tha t we are
(])
2 unable to decide or agree upon between us.
3 JUDGE BRENNER: Well, you have got another 4 problem, unfortunately, and it isn't very much within 5- our control to fix the problem for you, even though it 6 is not of your own making. It is the Board 's problem.
7 When we picked the 13th, thinking that we would have it 8 to be able to work on during the second week of that 9 break that we are taking -- we are just tied up, as you 10 know, otherwise, and we wanted that filing to have the ,
11 benefit of discovery, including depositions.
12 MR. SEDKYs Well, Your Honor, there's a 13 problem with that, the mechanical problem of just 14 getting testimony and transcripts back-.
15 JUDGE BRENNER: Yes, for the purposes of the 16 f ull prepara tion of testimony. Nevertheless, you've 17 been there in terms of being able to adjust and focus 18 the contention, and the process of focusing the 19 con ten tion isn 't as involved as the te stimo ny .
20 MR. SEDKY: I suggested to Mr. Christman that 21 they start their depositions tomorrow or the day af ter 22 and that would alleviate some of the pressure. And he 23 says -- well, I will let him speak for himself.
() 24 MR. CHRISTMAN: I was inclined to delay the 25 start of our depositions also, although of course we O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7261 l
l could go forward tomorrow. I am inclined to delay them
(])
1 2 just a little bit, in light of the fact that there is no 3 I suppose we I urgency now for us to proceed, eithe r.
O 4 could perhaps put it off for just a few days and try to 5 proceed with the County.
6 MR. SEDKYs I'm sorry to interrupt. It just 7 occurred to me that those are the very same experts who 8 are reviewing the material.
9 JUDGE BRENNER: All right, I think we 10 understand the considerations and we will get back to 11 you by the end of the day.
12 ,
(Pause.)
13 JUDGE BRENNER: I hope we will hear back from 14 the Staff a t some point today.
15 MR. BLACK: I'm ready to proceed now, but I 16 avait your ples.sure.
17 JUDGE BRENNER: This is a good time. Some of 18 these other considerations may be affected by what you 19 say.
20 MR. BLACK Hopefully, what I'm about to say 21 will clear up some of the fog that has surrounded this 22 question of the onsite appraisal. But let me preface my 23 remarks by stating that at this time the Staff stands
() 24 ready, willing and able to move ahead with the 'onsite 25 appraisal at any time. But based upon the Staff's O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7262
() 1 perception of what was happening at the site and based 2 upon its understanding of what LILCO was saying to them, 3 they decided to postpone that appraisal.
O 4 And our best estimate of when LILCO would be 5 ready to have us go on site was about the 1st of 6 September. And so, based on that, I indicated the 1st 7 of September. The date that the region gave me was 8 Auguset 30th, with a report published by October 1st.
9 Now, when I sta te that the Staff stands ready, 10 willing and able to go on site at any time and complete 11 this report, I mean that exactly, and to hopefully 12 expedite things the region has indicated to me today 13 that they are going to be sending a' letter to LILCO
~
14 indicating what things they will require for an onsite 15 appraisal.
16 Now, that indication of items tha~ will be 17 required will be of two ca tegoriesa One, for low-power 18 operation and one for full-power operation. And at this 19 time the Staff believes that only those things for 20 low-power operation need to be in place and ready for a 21 review and appraisal, and so that letter will be issued 22 by the region shortly, and I say within the next day or 23 two, indicating those two categories. And the region
[
() 24 will be expecting a response from LILCO shortly 25 thereafter which says that they are ready for the Staff O
i ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7263 s
() 1 to proceed with that appraisal.
2 And the region vants, I think they said, 3 approximately 20 days from the receipt of that letter to 4 get geared up and get ready to go. So what we are doing 5 now is putting the monkey back on LILCO's back, saying 6 that, when will they be ready to have the Staff come on 7 site for that appraisal.
8 We also recognize the Board's concern with 9 respect to a weighing of resources, and we took that to 10 heart because we know full well exactly what the Board 11 means, because it's not only Board resources but it's 12 Staff resources and everybody else's resources that are 13 involved in this proceeding'. And certainly to date that O 14 consideration is large.
15 And I think what, Judge Brenner, you were 16 saying is that to the extent that the a ppraisal will 17 help in settlement and negotiation of some of these 18 contentions, it certainly would be better to go ahead as 19 soon as possible. And we recognize that problem and we 20 are committed to move ahead with an isolated appraisal 21 of those items that are identified by either the County 22 or any of the other parties or the Board to be 23 susceptible to settlement through the appraisal
() 24 process.
25 So in other words, if there is something on O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7264
() 1 site that needs to be appraised right away for a 2 settlement of an issue or to go into litigation, we 3 stand ready, willing and able to do that as an isolated 4 appraisal. But as I indicated earlier, we are awaiting 5 LILCO's definitive response as to when it has equipment 6 in place and procedures finalized and personnel and 7 training completed, in such shape that we can go ahead g 8 with an appraisal, ensuring that we will have a I 9 meaningful review and analysis of the onsite plan.
10 I don't think it helps anybody if the Staff 11 vent ahead and had nothing but open items in its 12 report. It wouldn't help settlement, it wouldn't help 13 the hearing process, and that is why the Staff decided
('
l
' 14 unilaterally to have that first postponement.
15 MR. SEDKY If I may, Judge Bronner, I'm just 16 a little mystified. I don't believe there's any -- and 17 maybe Mr. Black has addressed this, but I don't see a 18 motion that is before the Board for a low-power 19 license. As f ar as we are concerned, we are not 20 litigating tha t question here, unless there is one that 21 I don 't know about. We haven't been advised of it, so I 22 don't know why the Staff would want to pursue some 23 hypothetical event.
, ) 24 JUDGE BRENNER: Hell, I guess I don't know why 25 you are mystified. Back at the first conference of the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554-2345
7265 e
() 1 parties, I believe, or certainly during one of the 2 prehearing conference stages, we talked about coing 3 ahead with issues we could go ahead on, with that 4 possibility in mind so as not to preclude by inertia the
- 5 f ailure to make those findings if and when such a motion 6 is m'ade.
7 MR. SEDKY: That may well be the case, Judge 8 Brenner.
9 JUDGE BRENNER: I don't know of any motion 10 filed, either. But we are still proceeding with those 11 issues that we can proceed on.
12 HR. SEDKY: Well, I think as a matter of 13 fairness and just a reasonable opportunity for the 14 litigants to prepare and address that issue, that if 15 there is consideration being given to a low-power 16 license that we be given fair notice of that and that we 17 be permitted to litigate it.
18 JUDGE BRENNER: We are going to be able to use 19 whatever record exists for whatever purposes there are.
20 And I'm worried about producing a factual record now, 21 and if there is ever an argument that the factual record 22 doesn 't permit any findings requested, that is what 23 proposed findings are all about.
() 24 But I want to deal more concretely with the 25 Staff's approach on the exercise now. I guess I should O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554-2345
7266
() 1 ask LILCO to make any comments it wishes to make, also.
2 HR. REVELEY: It's my understanding, Judge, it 3 would be better for LILCO to have the appraisal now 4 rather than later, because a number of its operators are 5 going to be off taking their operating licenses later in 6 August. I would hope that perhaps, rather than the 7 Staff writing LILCO a letter and LILCO writing a letter 8 back to the Staff and 20 days elapsing, that perhaps we 9 could sit down with the Staff face to face and get this 10 thing resolved much more quickly, and if the appraisal 11 is going to occur in the near future have it go ahead 12 and occur.
13 I mean, we seem to be setting up a program 14 that ensures there can 't be any appraisal before the end 15 of August, early September, on the one hand. On the 16 other hand, I think the Board has made it lucidly clear 17 that in its judgment some or all of the appraisal is 18 needed as a predicate to the litigation of certain of 19 the contentions.
l 20 That leaves us, LILCO, caught in the middle, 21 and if possible we would like to extract ourselves from 22 the middle. And what we will suggest to the Staff is 23 that, rather than writing each other letters and waiting
() 24 20 days for something to happen, we speed the process 25 up. Whether that's fea sible or not, I don' t know.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7267 l 1
l
\
l 1 MR. BLACKS I think that sounds reasonable to 2 the Staff. We were merely going the letter route to 3 just provide some concrete documentation to the Board 4 and the parties as to what we were thinking. The County 5 was present at the meeting that we had with LILCO on 6 this subject matter earlier, and I think all of us left 7 the meeting with no concrete words whatsoever as to the 8 state of LILCO 's onsite plan and what we were supposed 9 to do about it.
10 Now, I'm just saying, let's go ahead and get 11 that resolved in any manner that is deemed feasible.
12 And if that has to be done through conversations and 13 discussions, that is much better than writing letters 14 and formalizing it, if in f act it works cat to be to 15 expedite the process.
16 So we certainly are willing to do that.
17 18 19 20 21 22 23 24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
7268
() 1 JUDGE BRENNERa Well, we hope we made clear, 2 and incidentally, the Board did confer, and based upon 3 that, having conferred, my remarks are reemphasized 4 rather than being altered in any way, so we did have an 5 opportunity for that conversation among the three of us 6 and Mr. Reveley's characterization is correct. .
7 We think the sooner the better. I guess we 8 disagree with your notion that it wouldn 't help an ybody 9 to have a list of open items. It depends on why they -
10 are open. If they are open simply because work wasn't
^
11 done yet. If they are open because there are problems, 12 tha t is something where early identification will 13 presumably help all parties, including LILCO and the 14 Staff, in better ascertaining what their agreements and 15 disagreements are.
16 In your remarks on your possible revised 17 scehdule, Mr. Black, there was a gap of about a month 18 between the completion of the exercise and there report, 19 yet in the previous schedule, on the assumption that the 20 exercise was to be complete at the end of July, there 21 was a gap of only half a month.
22 MR. BLACK: The exercises take two weeks and 23 then there is two weeks to write the report.
() 24 JUDGE BRENNER: All right. I picked up the 25 gap from the beginning rather than the ending of the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7269 exercise. Tha t is clear.
(]) 1 2 MR. BLACK: At least from what I know of how 3 this appraisal works -- and this is for your benefit as 4 well as the County's and perhaps anybody else who would 5 care to listen -- it is a new process and- in response to 6 the County's problem s, if there is no motion for low 7 power testing, then accordingly we have these two 8 categories, the two categories, just as a recognition of 9 what really happens even in the absence of the low power -
10 test, and that is that certain things have to be 11 completed before other things insof ar as emergency 12 planning, notwithstanding the fact that there may be no 13 low power test.
14 It is just some things can be completed just 15 before the full power operation license is issued and 16 some things should be done earlier because there are 17 certain lead times that have to be taken into account 18 here and that is the basis for the two categorizations 19 as opposed to any motion for low power operation.
20 And the a ppraisal is nothing more than we go 21 through and check out things. But if they have a 22 facility with no equipment in there, we point that out, 23 that here is this f acility with no equipment and th e l
() 24 equipment has to be in place, but we point what 25 equipment has to be in there and then the time frame or O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
7270
() 1 schedule with which to do so. !
2 So it may not solve the Board's problems of 3 pointing out a problem with that equipment, because we 4 just note the equipment is not in place and we give them 5 a schedule with which to put it in place, and then we go 6 back and have a confirmatory check of those things. So 7 it may or may not identify the problem, so I am just 8 saying that for the purposes of the Board's notation 9 that perhaps it will pick up a problem.
10 But I am saying by the nature of the review it 11 perhaps will not pick up the problem. So that is just 12 for the purposes of clarification.
13 JUDGE BRENNER Isn't there some sort of O sJ 14 on-site exercise involved in the assessment also, as 15 opposed to just looking at the equipment being in 16 place? Isn't there an exercise in the on-site abilities 17 under an accident scenario?
18 MR. BLACK: Mr. Sears tells me no. Only the s 19 exercises are conducted prior to the f ull-term operating 20 license, not at this initial on-site appraisal.
21 JUDGE BRENNER: This is prior to the full-term 22 operating license, so the question is how do you define 23 the beginning point? Are you saying that you would hold
() 24 off on any such exercise until the governmental agencies 25 were also involved? I thought there was a separate O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l 7271 l
() 1 on-site exercise.
2 I believe I recall at least once this exercise ;
i 3 taking place somewhere, but I may be incorrect. !
4 MR. BLACKS Mr. Sears is shaking his head tha t 5 you ar6 incorrect about that, so there is evidently no 6 exercises that need to be completed at this initial 7 on-site appraisal.
8 JUDGE BRENNER: Well, I think you had better 9 get together and decide what schedule it can occur on.
10 You a re poin ting out that whether a particular issue is 11 identified tha t are either in or likely to be in 12 controversy, the likely to be only because we may be 13 holding off seeing if more information will further O 14 particularize and more affect a decision to admit them.
15 You might want to be in a position to be able to look at 16 those first and it makes good sense and is a good 17 suggestion by the Staff.
18 In terms of this division between on-site and 19 off-site, I suggest that you be guided not only by your 20 own notion of what is on-site and off-site but also 21 guided by what issues we admit and the discussion today 22 will give some indication of that.
23 We are going to try to get an order out at the
( 24 beginning of next week, if possible, which may defer 25 some issues, but at least you will see an indication of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7272
() 1 which issues we are still considering for this phase and
\
2 recall we may consider more issues than the bare 3 minimum, which will affect elements of the on-site 4 operation, including that first interface link which in 5 the Staff's own view may not be absolutely required for 6 an initial stage look and perhaps, even in our view, may 7 not be absolutely required but for one reason or another 8 we may be going ahead. And if they are going to be 9 litigated in the first phase, they should be included.
10 Originally in thinking about the schedule we 11 were hoping to have the benefit of tha t report earlier.
12 Just let us know as soon as it can be set up and we will 13 deal with the situation and reassess the schedule for 14 other things in light of that.
15 JUDGE MORRIS: Mr. Black, perhaps with the 16 help of Mr. Sears you could tell me if there is some 17 sort of standard approach to an on-site appraisal and, 18 if so, whether that is documented anywhere where we 19 might have access to it before we receive your letter or 20 LILCO receives its letter.
21 (Counsel for NRC Staff conferring.)
22 MR. BLACK: Mr. Sears informs me tha t in f act 23 there is an informational document.
() 24 (Counsel for NRC Staff conferring.)
25 MR. BLACK: There is a document. I don't O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7273
() I think it has a NUREG number, but all applicants are 2 a wa re of it, and if we can get copies to the Board and 3 parties we will do that. It is a quick thick document, 4 about an inch thick, and it is a checklist of things 5 that will be done on this on-site appraisal.
6 JUDGE BR ENNER : That might help everybody's 7 mutual understanding if we can get such a copy. The 8 Board can share one copy if it is very thick.
9 NR. BLACK: We will get that to you.
10 (Board conferring.)
11 JUDGE BRENNER4 If the schedule works out tha t 12 we could get that document by or before Monday at the 13 Bethesda delivery location, that would be good.
O 14 HR. BLACK: We will do that.
15 ( A discussion was held off the record.)
16 JUDGE BRENNER: Let me get back to the 17 relatively minor discovery dispute f or a moment in light 18 of what we just heard. The difference is whether to 19 proceed with one deposition a day, starting --
20 MR. SEDKY: The fifth of August.
21 JUDGE BRENNER: Not necessarily one a day. So 22 long as they are not done simultaneously?
23 '
MR. SEDKYa Correct. And it may be -- I mean,
() 24 it may very well be that they will be able to take two a 25 day, of what we are able to determine at this point of ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 i
7274 the minor witnesses.
{]) 1 2 (Board conferring.)
3 JUDGE BRENNERa We are focusing only on O 4 depositions. Because of the concerns you indicated, we 5 think it is a burden to have simultaneous depositions 6 going on and the time problem is not of the County's own 7 making, there being -- I am not talking about any evil 8 motive here, but the factual situation that has 9 transpired between the changing da tes of the Staff's 10 exercise and the delay in Revision 2 has worked to 11 whipsaw the County to some extent and that is even 12 without recovering that which is unrecoverable --
13 namely, a lot of the work that was focused on the last.
14 few weeks by the County -- now.you have different views 15 as to whether that is wasted work or not.
16 But nevertheless, adjustments now have to be 17 made even if 99 percent of the work was worth while. So 18 we think that completion of the depositions, looking at 19 that week of August 23, and we are wondering how far 20 into the week might be reasonable. We could go to the 21 very end of that week and that would give you some 22 margin.
23 MR. SEDKY: I am sure that LILCO may well
() 24 sus pect our motives, but we would like to finish them in 25 a week. We would like to get them over with as well.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINlA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7275
() 1 2
And if they can make the witnesses available so that Mr.
X and Mr. Y can be ready to go on a particular day, if 3 ve finish one in the morning we can pick one up in the O 4 afternoon.
5 What I would suggest is that we take to the 6 ,end of the week but not use it unless we need to. In 7 other words, we will not take afternoons off. If we 8 finish with one witness and they are able to put on 9 another witness or we are able to put on one of our own 10 witnesses that we will do so.
11 JUDGE BBENNER: I don 't know if we are going 12 to have to adjust the testimony filing date, which is 13 September 14 now, and I will know a whole lot.more of A
\_/ 14 what is happening when I hear the schedule for the 15 exercise and the report and so on.
16 This is complicated. This is part of the 17 discussion that I thought we would avoid today if you 18 project out where we are going with the rest of the 19 hearing. It is not likely that we would be finished by 20 the end of September.
l l i21 The consideration is we want to be very l 22 precise in the schedule because, as we have said, we 23 want to go right into the emergency planning litigation
() 24 because we want to be busy with that with the Board 25 while parties are preparing at least the initial 30 days 1
I i
1 ALDERSON REPORTING COMPANY,INC, l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7276 O ' or o ==t11 e eet the rir e =et or orovo ea riaa1ao=
2 in, because that would be the most effective use of our 3 time.
4 I will tell you what I am thinking so we will 5 all know. I didn't want the end of the discovery to be 6 later or much later than the filing of the revised 7 contentions and that is the consideration that is going 8 on now. But we wanted the filing of the revised 9 contentions during our break and we also, of course, -
10 wanted them with enough of a gap to rule on them, given 11 the testimony filing schedule.
12 MR. SEDKY: If I may suggest something, Judge 13 Brenner, it might be that it is workable and that we i
14 have the revised contentions filed sooner than the 15 conclusion of discovery with a view that perhaps rulings 16 on ultimate admissibility and so forth might take into 17 account what discovery has been undertaken.
18 JUDGE BREN NER: Well, I don't want you to be 19 misled by that attempt to come up with a reasonable 20 solution because it could work to your detriment in this l
l 21 fashion. We may find contentions that we think are 1
l 22 frankly too silly to litigate in the sense that the 23 facts should have been ascertainable. Your problem A
V 24 might be fine, but we are still in the process of 25 ascertaining that, which would be a reasonable response O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7277
() 1 from the County.
2 (Board conferring.)
3 JUDGE BRENNER. We are going to do this. We 4 will give up the ability to work on them during our 5 break and work them in sometime and we will be 6 indicating in our order whichever contentions we want 7 further work on and, I might add, even contentions that i 8 we admit in the first order are not precluded from 9 further work and there may well be overlapping subjects.
10 We would have that filing by August 20. We 11 would still keep the date by which depositions are to be 12 complete, absent unanticipated, compelling 13 circumstances, to be August 27.. So there is some lack 14 of congruity between our initial goal of having the two 15 things occur about the same time frame -- in fact, if 16 anythino , the depositions complete a few da ys before the 17 filing. However, we expect all parties to use their 18 judgment and focus the initial depositions on those 19 areas where we have indicated f urther information for a 20 particular contention should be ascertainable.
21 So focus first on the same subjects you need 22 to convince us to admit your contentions or, from 23 LILCO's point of view, not to admit the contentions.
() 24 And hopefully that approach will solve things in terms 25 of the further contention filing and we would still keep
' }
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7278 that response date of the following Tuesday, which would
(]) 1 2 now be August 24 3 Again, bea ring in mind everything we have said 4 about all parties should be apprised before the filing 5 of the 20th as to what is going to be in the joint 6 filing of contentions.
7 We will set a testimony filing date when we 8 consider the schedule finally arrived at for the on-site 9 audit by the Staff and I don't know that the gaps would 10 shift automatically. And maybe we will take another look at what gaps were set and try to keep the testimony
~
11 12 filing date close to the original date, perhaps with 13 some slippage but not necessarily day-by-day, and we 14 hope we can get a report when everybody is willing to 15 give us a report -- sooner rather than later -- as to 16 when th a t exercise would take place.
17 And then we will talk about the testimony l 18 filing date.
l 19 MR. SEDKY: May I just ask a question, Judge 20 Brenner? I am not sure I understand. Are we still 21 shooting, then, for September 14 testimony filings until 22 we hear otherwise?
23 JUDGE BRENNER: Yes. Don't be shocked by some
() 24 sligh t dela y in it. It is just that I don't want to 25 indicate that it is going to be day-for-day.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7279
() 1 Again, you see, a lot of our planning we have 2 been very careful in this proceeding to indicate well in 3 advance when we are going to take breaks in the 4 evidentiary hearing for a lot of reasons -- partly out 5 of courtesy to the parties so they can plan activities, 6 including the possibility of a vacation in August and 7 also once we have done that we have keyed some filings l
8 to our anticipated being able to work on those filings '
9 during the break.
I 10 That hasn't worked very well yet. It didn't 11 work very well during the last break for a number of 12 reasons, and we have already had to make a change for 13 this break.. We have a break at the end of September 14 and, in part, we wanted to become familiar with the 15 emergency planning testimony during that break. And 16 that is why the kind of filing date I am thinking of --
17 and the Board will talk about it once we get the 18 exercise date -- would be probably not much later than 19 the 21st of September.
20 Incidentally, I did not miss one possible 21 implication, at least in inference, I drew from the 22 Staff pointing out it could prioritize its focus on 23 issues that would be affected by the exercise.
()
24 First, I recognize there might be a 25 possibility of two different filing dates, depending O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
7280
() 1 upon the issues, for even this first phase of emergency 2 planning contentions. However, I wanted to try very 3 hard to avoid tha t. It worked well when we had a longer 4 time f rame on the safety issues, but the time frames are 5 tighter here and it is not going to work as well.
6 We are not precluding that possibility-when we 7 get closer, but we would like to avoid it. Things are 8 complicated enough.
9 Okay, we wanted to give you a quick answer on 10 the discovery because we recognize that it is coming up 11 right away and you wouldn't want to wait for our written 12 order. Now back to the contentions.
13 And incidentally, I always forget to thank 14 parties. We are quick to criticize. We appreciate 15 everybody getting back to us on all of these matters, 16 and particularly the Staff in their further thinking, 17 and we think things will work out now.
18 Now, contention 2 -- I should say contention 19 EP2. There is no problem in our admitting A and B.
20 There are no objections. Our only query, which we left 21 you with before the break, was whe ther we should take up 22 A and B in this first phase. I guess I will ask LILCO 23 first.
() 24 MR. CHRISTMANs Would you repeat the question l 25 for me?
I
(~% l
%) i i
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 )
l
7281
() 1 JUDGE BRENNER: There is no problem in 2 admitting EP contention 2, subparts A and B. There are 3 no objections by the parties and we have no objections 4 of our own. We understand the issue. It is an 5 admissible issue.
6 The only question is should we take it up? A, i
7 must we consider it in the first phase. B, should we, 8 if we have some flexibility -- -
9 HR. CHRISTMAN: This once again looks like an 10 issue that could be deferred. We can litigate it in the 11 first phase. Our only concern is that if we litigate it 12 in the first phase that we not have to relitigate it 13 later on if somebody should come in in six months with O 14 additional evidence on the effect of fog on sirens or 15 should manage to draw in the shape or size of the EPZ to N. g 16 the effect of weather on'the sirens..,
17 I mean, that is my concern. To the extent 18 that LILCO designed or is responsible for the design of 19 these things, we can litigate them now -- in phase I, 20 that is.
21 JUDGE BRENNER: Does the County or Staff, 22 either/or, have a comment?
23 MR. SEDKY: We obviously -- perhaps to avoid I
() 24 reiterating, we want to litigate everything now. I mean 25 basically we want to litigate the entire plan because we o
4 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
1
7282 l
() I think it is ready for litigation.
2 JUDGE BRENNER: Staff?
3 MR. BLACKS I think these are two discrete 4 issues that can be litigated in the initial hearing.
5 JUDGE BRENNER: I'm sorry. I didn't hear the 6 end.
7 MR. BLACKa I am just saying that I think 8 these are two discrete issues that can be litigated in 9 the on-site planning portion of the hearing.
10 i JUDGE BRENNER: Okay. EP2C. I guess I 11 indicated before the lunch break -- perha ps not in these s
12 Words -- but we do not see a need 'sve to take expert 13 testimony before this Board on ti., type of issue. Nov 14 we are not criticizing the advancement of tne issue at 15 this stage. In fact, as stated, it was a perceived lack 16 of provision in the plan for these type of thing s .
', 17 We are not saying the plan doesn't have to 18 ar) count for th ese things. We are saying it is not the 19 type of thing that needs to be litigated unless you get
, t l
t 20 to the point where the plan just doesn 't account for it l i in a way that is reasonable, which seems unlikely given 21 22 the nature of the issue.
23 MR. SEDKYi If I may add ress that, Your Honor,
() 24 it:may be that we were not clear enough in what we seek I
25 to litigata here. ,It is not so much the language to be i
\
ALDERSON REPORTING COMPANY, NC, y 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7
, -/
' ' ' ' ' , ,;72a3 .
"~2 O =e we w1 a to 11tio te is' i ==ea 1a tat =- rae 1 .
2 fundamentally whether signs are ' appropriate means' of k' 3 3 notifying transients, particularly in this area.
/
4 We would expect to introduce < testimony on 5 vandalism, on lack of -- in fact, people just don't read 6 signs and that we will need experts to establish that 7 fact or those facts. I mean, as we contemplated that 8 contention, I mean, perhaps it can be clear. It isn 't a p
9 question of what the signs say, although th at' might 10 become an issue.
11 I might add that on that point ve would also
~
12 introduce expert testimony on alternatives such as 13 public address systems, cost-effectiveness,,and that R .J' ,
14 question.
15 JUDGE BRENNEE: Well, without quibbling one 1S part of the contention as stated, particula rly subpart 17 2, seems very clearly to be talking about the language ,/
18 of the signs and I am glad to hear that you don't expect 19 us to have to debste that.
20 ME. SEDKY: That is correct.
21 JUDGE BBENNERs I'm also not pa rtic ula rly 22 interested in litigating through experts, and I don't 23 know what discipline it would be, as to whether or not 24 people would read signs. Now if you wanted to litigate 25 whether signs -- your first point as to whether signs r~~
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l l
7284
() 1 are the correct means, given some problems and given 2 some other efficacious ways of conveying information, 3 that gets slightly better.
4 But you are talking about'-- I guess I made a 5 comment the other week which I will stand by that we 6 don 't intend to count school buses in this hearing and 7 what I mean by that cryptic remark was that there are 8 just a long list of f actual inf ormation that we need not 9 take hearing time up on, and this is that type of thing.
10 I think we can get by this one quickly today,
'- 11 but I did not want to let the opportunity pass to give 12 you our hostile views towards having to litigate this
- 13 type of issue.
v 14 HR. SEDKY: I have read some of the 15 transcripts, Your Honor, and at least I have tried to be 16 sensitive to that kind of concern on the Board 's part.
17 JUDGE BRENNER: Let me indicate that we are 18 not saying you are not permitted to raise this kind of 19 issue. If you can tell us that the plan just doesn't 20 consider this at all, I want to emphasize that we are 21 not saying it is not a necessary part of the plan. It 22 is just a matter of whether it is a part of the plan 23 worthy of litigation.
() 24 But if you show us tha t the plan is not 25 considered a t all, then you are certainly entitled to ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7285
() 1 advance that kind of issue.
2 MR. SEDKYs Well, I guess, setting aside that
\
3 the subparts of C, of 2C, our basic point is that, again 4 going back to the regulatory standard, that a plan has 5 to be capable of being implemented. The fundamental 6 thrust of subpart C is that signs don't meet that 7 standard and we intend to introduce evidence to show 8 that.
9 JUDGE BRENNER: Let me propose a means by to which we can get past this today and hopefully, although 11 not necessarily, forever. Signs to transients are but 12 one small segment of the overall combined scheme of 13 notification and aducation of of f-site popula tion l 14 through preplanning and, if so, the population knows 15 what to do in the event of an actual emergency.
l l 16 And some of the things you said indicated what l
17 I also believed on my own -- that it is difficult to 18 carve out that one segment and make a finding that this 19 is adequate or inadequa te even if we were willing to l
20 litigate it, because you have to look at it as part of 21 the coordinated whole of notification to off-site 22 groups, which groups are in somewhat different 23 situations -- transients on the one hand, permanent
() 24 residents on the other hand -- and different 25 combina tions of notification schemes might be more O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l l
7286
() 1 efficacious for one than for the other group.
2 This looks to us as something that if we 3 vanted to litigste it at all could avait th e la rge r 4 off-site stage and unless somebody wants to convince us 5 otherwise --
6 MR. SEDKY: Yes. I would like to convince the 7 Board otherwise. It has not been objected to, number 8 one, by anybody.
9 JUDGE BRENNER: Yes, that's true.
10 MR. SEDKYs I understand that. It is in the 11 plan. It is in the regulation. We have prepared and 12 are preparing to submit testimony on that.
13 JUDGE BRENNER: Well, if we put it off, we are 14 certainly not going to make a finding that it is okay, 15 that the plan as to that aspect is acceptable. There 16 would be no finding on it. But one of the reasons for
~
17 putting it off, first of all, we think it can be put 18 off. Secondly, we think this is susceptible to -- if 19 the parties can't agree on an issue like part C, then we 20 have great doubts that the parties can agree on 21 anything -- if not full agreement, at least a 22 substantial narrowing of some of your oral explanation.
23 I suggest Mr. Sedky represent at least a
() 24 better focusing of the written contention.
25 HR. SEDKY: The concern I have maybe is more O .
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7287
() 1 fundamental than that. Is it the Board 's intention not 2 to try notification procedures?
3 JUDGE BRENNER. When you state it that broadly 4 it is that difficult, and that is why we now have the 5 ben.2it of the contentions to attempt to be a little 6 finer inthe lines we draw. Sirens is certainly part of 7 notification also and we are willing to litigate 8 subparts A and B, as we indicated.
9 But they are separable parts. You are going to 10 need off-site governmental agencies involved to a large 11 extent in the total notification scheme.
12 NR. SEDKYa I guess I f ail to see the 13 distinction between litigating the adequacy of signs and 14 not litigating the adequacy of signs. I mean, if we are 15 going to litigate whether the public is going to be 16 adequately notified about an impending emergency, I just 17 submit that it would be more efficient to do that in one 18 fell swoop.
19 i l
20 j j 21 l 22 23
() 24 25 O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE, S.W, WASHINGTON. D.C. 20024 (202) 554 2343
7288 O ' avoct aat""ta= 8xce=* ** t 1* 1=a
- oae 1 11 2 swoop because there are yet other parts tha t are not 3 ripe for litigation that would affect subpart C, and I 4 think that is our point. Also we can understand how 5 siren coverage is the kind of thing that is worthy of l
6 expert testimony as opposed to whether or not people 7 will read signs to be blunt about it.
8 MR. SEDKY: I respectfully suggest that is a 9 question for the weight of the testimony and not to its 1
i 10 admissibility. We wish and believe we are entitled to 1
11 introduce testimony and evidence on that topic. We 12 would like to proffer it. If we cannot persuade the 13 Boa rd that it is relevant and admissible and competent, A
V 14 so be it. But I guess I as a little disturbed at an a 15 priori determination that evidence of this sort is not 16 admissible because we have expert testimony.
(
17 JUDGE BRENNER: The immediate determination is 18 that if we do it at all, we will hold it off for the 19 next phase. That would be the ruling.
20 What I am telling you now is that you may get 21 that later ruling at the ne xt phase if the contention is 22 as written.
23 Now, these comments may or may not assist you
! 24 in thinking about how you would want to focus the 25 contention in the context of the total off-site O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7289 lll 1 notification scheme later on, and I don't disagree with 2 you that there is a relationship between C and A and B, 3 but the other point is there is hiso a rela tion ship 4 between C and other elements that cannot be litigated 5 now.
6 MR. SEDKY: I am not going to argue with the l
l 7 Board. I am a little confused now. l 8 JUDGE BRENNER: Well, we welcome the 9 argumen t. This is the --
10 MR. SEDKY: Well, I guess I'm a little 11 confused as to what we are going to be doing by August 12 20. I mean, are we to just toss out C and simply say at 13 some point we are going to have to address that issue, O 14 or are we going to attempt to rewrite C in a manner that 15 is perhaps more consistent with the way I articulated it 16 today?
17 JUDGE BRENNER: That's a fair question. There 18 vill be a number of different ca tego ries, and if we hold 19 with our preliminary ruling, our order would indicate 20 that you would just toss out C in terms of this first 21 phase. There vill'be others tha t we are not excluding 22 from the first phase, but Je want them better 23 particularized and refined.
I 24 Incidentally, if this helps you when we get to 25 the later phase, if you at that time wish to advance a O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7290
() I contention regarding whether or not the signs would be 2 read by transients, your argument would have to be not 3 just a matter that there are experts of such disciplines 4 that could testify to that one way or the other, but 5 also whether the emergency plan requires that type of 6 adjustment to take account of the fact that individuals 7 might not read signs that are provided under the plan.
8 MR. SEDKYs Again that is certainly a 9 question, but at least as I perceive it, is a question 10 of the weight of the testimony and if it is germane to 11 the issue and capable of being implemented, then it is, 12 and if it isn 't, we lose.
13 JUDGE BRENNER: It might be pertinent to the O 14 admissibility, too, but if you still have problems, 15 legitimate problems with the signs, I guess we will hear 16 about it again.
17 (Pause) 18 JUDGE BRENNER: Contention EP2D goes back to 19 being related to the siren coverage again and talks 20 about gaps in the siren coverage. Like A a nd B, that is 21 something we can litigate now, perhaps a little bit 22 unlike subpart A and B, and it is a matter of degree 23 rather than a difference in kind.
() 24 We will be possibly again talking about gaps 25 in coverage in areas beyond an assumed approximate 10 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7291 l () 1 miles, when we get to talk about the size of the EPZ in 2 the next phase. So the question is should we go ahead 3 and talk about gaps within the approximate 10 miles and 4 then come back and talk about -- possibly have to talk 5 about gaps again? It would be different factual 6 material but very similar subject matter. So this would 7 be a practical consideration and not a legal 8 consideration.
9 I think we would be willing to go ahead if the 10 parties wanted that, recognizing that we might well have 11 to come back to that subject again to some extent. We 12 might have a record we could take advantage of to some 13 extent. I don't know what the extent would be.
14 I will solicit comments on those comments from 15 LI1CO.
16 HR. CHRISTMANs It seems to me we can litigate 17 now whether the gaps exist in that 10-mile EPZ , and I ,
18 would expect that that would end tha t once and for all.
19 I recognize the danger you mention that we might have to 20 do gaps again, but presumably that would be beyond the 21 10-mile EPZ.
22 JUDGE BRENNER: I guess the county would want 23 to go ahead as much as possible, based upon your other 24 comments.
25 MR. SEDKYa That is correct.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
(g) 1 JUDGE BRENNERs Does staff have a view?
2 MR. BLACKS No.
3 JUDGE BRENNER: This arguably gets to the 4 merits a little bit, but it is part of the indication of 5 the type of subject tha t I hope vill continue to be 6 discussed during the next few weeks. Are there conceded 7 gaps in the coverage, and if so, are they small, large?
8 Are they being rectified in LILCO's view? Can we get 9 some indication?
10 MR. CHRISTMAN: We think that the gaps -- I 11 think there are gaps of some kind as shown on the map, 12 as cited, but I think it relates to, I think it can be 13 explained, and that the system is adequate, 14 notwithstanding those gaps, and can be explained in 15 terms of the decibel levels that the circles represent.
l 16 JUDGE BRENNER: Hopefully that is an example 17 of the type of thing that will continue to be 18 d is cu ss e d . So even if we admitted this as stated in our 19 order a t the beginning of next week, that should not 20 preclude the county and the Intervenors from filing a 21 more specified wording of that contention.
22 If you had the benefit of discussion -- a nd 23 this is very hypothetical. I certainly don 't know what lh 24 is involved here -- it migh t be that LILCO's claim that 25 the decibels represented by the circle are higher than 9
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7293
() 1 necessary and if you redraw the circle with lower 2 decibels, that is adequate in this area, and it is 3 unfounded, and we disagree, and if that is the case, 4 that would focus this in very well from the contention.
5 MR. SEDKY: I agree, and one of the problems I 6 have, as I think we will learn as we go through here, is 7 that it is going to be virtually impossible to segregate 8 or try to resolve even those kinds of discrete questions 9 without getting into some difficult issues such as deaf 10 and hard of hearing. But maybe we will get there in due 11 course.
12 JUDGE LRENNER: That might be , but it might be 13 the contention can indicate that is okay for everybody O 14 who hears well, but it is not okay for people wh'o have 15 hearing impaired problems. Then of course we will be 16 very well focused on where the testimony is going to go 17 and where your concern is.
18 HR. SEDKYs I take it that if we had a 19 contention here, for example, concerning just 20 hypothetically that people ignore sirens, that would not 21 be litigated , but that the scope of the siren would be 22 litigated?
23 JUDGE BRENNER: Yes.
() 24 (Pause) 25 JUDGE BRENNER: E is a little bit similar to O
- ALDERSON REPollTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7294 C, not in the f actual context so much as the type of
(]) 1 2 comments we would make about them, although the degree 3 might be different. These are the kind of facts, that 4 is, what type of f ollow-on notification should be 5 planned for in a large facility from the point of 6 receipt of the initial notification to that facility is 7 best, a kind of fa.ctual situation that, if not subject l
8 to settlement, should ' least be subject to a much 9 better narrowing of what .ae county thinks should be 10 done and a better focus on what is being done. In t
11 addition, similar to C, it appears to involve, to be 12 related to a lot of off-site concepts that will have to 13 avait further development of the plans.
14 HR. SEDKYa As we see E, it is really no
-15 different than how far the siren reaches. In other 16 words, if you are trying to have people understand that 17 there is an emergency going on, that either they can 18 hear a siren or they are told by their employer that a 19 tone alert just went off. Frankly, I just am not able 20 to make a distinction between the two, and that is the 21 gist of our conten tion.
l 22 HR. CHRISTMAN: Judge Brenner, for what it is l 23 worth, I think this-strikes us as an off-site second
() 24 phase question, and of course, it may be as many of 25 these may be susceptible to some sort of legal or ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7295
() 1 quasi-legal resolution, for instance, on the ground that 2 such a thing is simply not required.
3 MR. SEDKYs File a motion.
s 4 JUDGE BRENNER Well, we are inclined to think 5 it could be an off-site second phase also in terms of 6 resolution. We weren't thinking of legal resolutions so 7 much as the parties getting together and finding out 8 what the notification plan is and figuring out whether 9 it is reasonable.
10 That does not disagree with your comment, Mr.
11 Sedky, as to the relationship you pointed out', but there 12 is also the other relationship of fitting it in with 13 that total offsite picture. It is not as simple as a 14 matter of whether the siren is heard or not. In some of 15 these cases you are talking about institutional type 16 settings, schools and nursing homes and so on, where the 17 individuals, whther they be patients or young school 18 children, would not be expected to act on their own in 19 response to a siren, and you need some sort of further 20 portion of the plan. Whether we should sit here and 21 litigate how every PA system or whatever is set up is 22 going to b; involved in these types of institutions is 23 another matter. I don't view that as necessarily O 24 intended by the contention, or at least I certainly hope
(/
25 not.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
I 7296
() 1 MR. SEDKY: No. I would assume tha t LILCO 2 would be able to talk to these, particularly in the 3 private sector, I might add, to talk to these eleven 4 major employers and say when this tone alert goes off in 5 your security office, what do you propose to do, and 6 they would put something to that eff ect in the plan or 7 the implementing procedure. And if it is adequate, we 8 would all go home on that topic.
9 I guess the thrust of E is really more like A 10 and B and D in our opinion, and that is you don't notify 11 buildings, you notify people.
12 JUDGE BRENNER: Your point up until that last 13 point reinforces the Board's view that it can be put off
]' 14 because it is part of that total, integrated off-site 15 second phase plan of the further wave of response. It 16 is not just that initial notification response.
17 Secondly, it also seems to be the kind of 18 thing that we don't have to litigate, provided it is in 19 the plan, unless you come in with some very good -
20 particulars tha t there are just large institutions for 21 which no secondary notification has been accounted for.
22 MR. SEDKY: I am sorry. Is the thrust of the 23 Board's observation that if we were to amend E,
() 24 supposing we went out and checked wi th these major 25 employers snd found out that they have never been O
ALDERSON REPORTING COMPANY,INC, i
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7297 '
l
() 1 contacted by LILCO and don't know anything about a 2 proposed tone alert system, that in that case it would 3 be tried or not?
4 JUDGE BRENNERa It would be. You would have a 5 very valid point. Two things: first of all --
6 MB. SEDKY: In this phase I'm saying.
7 JUDGE BRENNER: No. Let's think about it for 8 the off-site second phase and again, off-site /on-site 9 is an overly simplistic dichotomy but something that can 10 he tried in the second phase.
11 Now, even within that second phase, the kjnd 12 of situation you indicated would certainly be something 13 you would be entitled to pursue before the Board.
14 Hopefully that information can be gotten out among the 15 parties, pa rticula rly when the county, with its own 16 responsibilities, is one of the parties.
17 MB. SEDKY: I would like to know just as a 18 matter of appropriate notice as to what it is we are 19 litigating, whether what we are doing here is litigating 20 only those elements that are applicable to a low-power 21 license.
22 JUDGE BRENNER: Basically, yes, but not 23 exclusively because we are going beyond it in some sense
() 24 such as the siren couplage.
l 25 MR. SEDKY Well, I think there might arise l
O ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
7298
)
() 1 some due process issues here as to whether or not we 2 have had an adequate notice that that is what we are 3 litigating. We hsve been led to believe that there is 73 V
4 only one application on the table.
5 JUDGE BRENNERa I am going to cut you off 6 because I am just going to be repeating myself. That is 7 the only application I know of also, but we talked about 8 not precluding it, and the judgments are also made in 9 terms of what. we can go ahead and litigate. We agreed 10 with the county some months ago that as of now, at 11 least, subject to further developments, we weren't going 12 to go ahead and attempt to litigate of f-site elements 13 that would be affected by the county 's plan , which th e-A k# 14 county asserted was not final and which it was working 15 on.
16 MR. SEDKY: I guess --
17 JUDGE BRENNER: So that is involved also in .
18 o ur decision.
19 MR. SEDKYs I understand, and I a m going to 20 just move on to a slightly diff erent other point, and 21 that is if that is the case, and tha t is that we are 22 really looking to a low-power application, I think we 23 would like an opportunity to address the legal question
() 24 as to what is the scope of the Applicant's planning 25 obligation. There might be a difference in view between O
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7299
() 1 the parties and possibly between the Board and the 2 county as to what the legal requirement is, and it might 3 be fruitful to brief that issue for the Board so that we 4 could get a legal determination of whether they are 5 required to meet all of the 16 criteria of 50.47(b) or 6 certain of them. I mean, it might streamline this 7 entire proceeding.
8 JUDGE BRENNER: I don't think it would. I 9 think you would be entitled to make that filing if and 10 when a motion is filed, and we would give you that 11 opportunity, and you, of course, would want to discuss 12 the criteria in terms of what should be involved in 13 emergency planning and also in terms of the Commission's
' 14 reg ulation, and I think you should have that 15 opportunity. -
16 Let me point out the background. We have been 17 precluded by .the lack of readiness of the county, your 18 client, from going ahead and considering emergency 19 planning in one group, which was our initial intention.
20 As a result of that inaction by the county -- well, 21 maybe inaction isn't the right word -- that lack of 22 complete action a t this time by the county, we have been 23 forced to go ahead and look at what we can go ahead and
() 24 litigated based on the plan tha t is available. It 25 happens that under the Commission's regulations,
! (
l ALDERSON REPORTING COMPANY,INC, 400 VIRG6NIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
f l
7300 arguably many of these, pretty close if not the same,
(]) 1 2 dichotomy between what you can go shead and look a t 3 without the county 's plan also happens to be the types 4 of things the Commission had in mind in the dichotomy 5 between low power and full power, and that is why the 6 guidelines a ppear to be coming very, very close.
7 But I am not precluding the possibility that 8 there is room for argument that certain issues were not 9 admitted in this phase whch would be essential to a 10 low-power finding, if such an application is made, or in 11 fact, the other way, as has been indicated, that we may 12 be admitting issues beyond that which may be necessary, 13 but we are doing so because the information is there and 14 it is less likely to be affected by la ter information.
15 HR. SEDKY I just don't want to waive any 16 rights, procedural rights that the county might have in 17 terms of there not being a motion for a low-power 18 license and our not having had any formal notice of that 19 application.
20 JUDGE BRENNER: Procedurally you will have the 21 opportunity to object on the basis of whatever factual 22 record is either adduced at that time or about to be 23 adduced is not sufficient, but you are on notice that
'() 24 the f actual record as adduced may be applied to any 25 legal context.
l ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
I 7301 ,
l MR. SEDKYs No, I was really addressing the
(]) 1 2 question of notice more than the sufficiency of the 3 evidence.
4 JUDGE BRENNER: 1 guess when you made your 5 comments earlier I didn't understand that, and then that 6 is why I disagreed then in terms of you have had an 7 opportunity to argue that the factual record isn't 8 sufficient for any such motion. You would have that 9 opportunity. -
10 Part of our motivation is we want something to 11 litigate during those first 30 days or so.
12 MR. SEDKYs Well, you have already excluded 13 three of them that we are perfectly willing to litigate, 14 that neither the Staff nor the utility objected to.
15 JUDGE BRENNER: And if we hay done so 16 erroneously, you migh have a better argument later on 17 your procedural rights.
l l 18 Part of our consideration in excluding E as 19 well as C is we hope we don't see that contention in 20 that broad a form later, even during the next phase, and 21 if so, we will deal with it en those terms.
1 l 22 Now, contention ET2F deals with the tone alert 23 system.
() 24 Which tone alert system do you mean, the ones 25 to the central institutions?
O ALDERSON REPORTING COMPANY,INC, 400 VIRGIN lA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7302 MR. SEDKYs That is correct.
(]) 1 2 JUDGE BRENNERs What did you have in mind, 3 just their overall requirements or an inquiry into each 4 and every tone alert? It shouldn't "ary, should it?
5 MR. SEDKYs To some extent we may have been 6 and are even satisfied as to tha t.. We received a letter 7 from Mr. Christaan that advised us that they test these 8 tinings I think on a weekly basis, or intend to, or 9 something like that. So this may be an area that is 10 minor. We just didn't have enough information as to the -
11 testing.
12 JUDGE BRENNER: We are again, as of today, we 13 are not criticizing the 'aling of such contentions.
14 HR. SEDKYs Sure. It may be moot.
15 JUDGE BRENNER: On August 20 ve may criticize 16 the filing of such contentions.
17 Okay. Based on that, I think we vill hold off 18 on this and see whether it is still included in the 19 August 20 filing, and if so, hopefully a more 20 particularized statement of what the problem is with the 21 tone alert system, but subject to that, if we admit it 22 in litigation, I think we could try that kind of thing 23 in this phase even though it might not be absolutely
() 24 required in this phase, again, because it is unlikely to 25 be affected by later information.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7303 I also hope it is resolved among the pa rties.
({} 1 2 As you say, it seems to be a readily ascertainable fact 3 one way or the other.
4 Now, contention EP3G is a dispute I know we 5 will see again in the off-site phase, and that is the 6 proper size of the zone. It also could be made more 7 particular. Whether the lack of particularity would be:
8 a bar to admission we need not decide now. Suffice it 9 to say that better particularity as to- what areas along 10 and outside the border of the zone you were talking 11 about would be helpful, particularly when you are 12 worried about the necessity for movement into the zone 13 throuch the shadow effect and so on.
('
14 MR. SEDKY Actually, this was not a shadow 15 effect issue. This was, as we understand it, the 16 10-mile radius happens to come through I believe 17 Riverhead and just barely exclude Port Jefferson.
18 JUDGE BRENNERa Okay. That is an example of 19 something that would have been helpful to include in the 20 contention. I think we could defer this until the 'next 21 phase, and hopefully at that time the precise proposal 22 at least for whatever approximate 10-mile zone LILCO 23 vants will be ascertained, and then we can litigate
() 24 whe ther if the approximate 10 miles are okay, there 25 should be adjustments for population centers, boundaries O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
~7304
(') 1 and so on. There are also larger issues involving the 2 size of the zone and the suggested shadow effect.
3 The Board itself, I assume you know, Mr.
U-s 4 Sedky, indicated at least one issue tha t we would be 5 interested in which affects that.
8 HR. SEDKYs You are correct.
7 JUDGE BRENNER: Now, EP2H is the hypothetical 8 you alluded to earlier. As indicated, I think we can i
9 put that off again, not because it isn't related to the i
10 siren system, but because it is also related to the 11 large provisions f or whatever special adjustments need 12 to be made for notice to the general public, those 13 elements of the general public for whom siren coverage 14 might be insufficient, in this case, due to hearing 15 impairments.
16 Just out of -- well, it is more than l 17 curiosity, but it is to get an inkling into the type of l 18 things covered in LIlCO's present plan, even though we 19 think we don't have to litigate it in this phase, is 20 that type of thing covered in the plan as distinguished 21 f rom awaiting f urther off-site developmen t of the plan?
22 MR. CHRISTMAN: I don't think it is covered, 23 but we have got some ideas, and it might be subject to 24 settlement.
25 JUDGE BRENNER: Also presumably subject to O
I ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
I 7305 coordination with governmental agencies who may have to
(]) 1 2 implement some of the proposals that you might have in 3 mind.
4 HR. CHRISTMAN: Yes, sir.
5 MR. SEDKY So as to not be waiving anything, 6 we believe it belongs in their plan now and ought. to be 7 litigated.
8 JUDGE BRENNER: Why do you say it belongs in 9 their plan now, if coordination with governmental 10 agencies, possibly the county and possibly other 11 governmental agencies, would be necessary to implement 12 provisions to notify hearing impaired, if notification 13 has to be by means other than sirens?
14 MR. SEDKY: They have a regulatory obligation, 15 as we read the regulations, whether for low-power or 16 high-power license, to furnish adequate notification, 17 and in doing so, we contend they have to take into 18 account whether the plan is implemen table, is capable of 19 being implemented, and tha t they ought to consider what 20 to do about the deaf and hard of hearing.
21 Now, that may be a legal issue that somebody 22 is going to have to fight a t some poin t, but that is our 23 position.
r' For the sake of a rgument, if 24 JUDGE BRENNER:
l 25 that would have to be re sol ved prior to a low-power O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
(
L .-
~
7306 1 license -- and incidentally, that is not the way I read
(~)
2 the Commission 's rule.
3 MR. SEDKYs Evidently not.
O 4 JUDGE BRENNERa We will hear from you again, 5 but that is not the only consideration in saying it 6 should be put off. Even if it was required, how could 7 we grapple with it now if it awaits action by the county 8 or other governmental agencies that LILCO cannot do it j 9 on its own? -
10 3R. SEDKY: There are a lot of things that 11 LILCO can't do on its own that we would contend they are 12 obliged to say that their plan is to do such and such 13 with respect to the deaf and hard of hearing. They are
{T 14' going to enlist the support of the police. They are 15 going to use flashing radio equipment in people's homes, 18 and that it is their responsibility basically to make 17 sure that there is a means that exists to make that 18 notification, irrespective of who is to implement it.
19 And I would just note, Mr. McMurray just showed me that 20 in the notification methods of procedures a s contained 21 in NUREG-0554, it says it shall be the Licensee's 22 responsibility to demonstrate that such means exist, 23 regardless of who implements this requirement. That
() 24 means it is not in the plan.
25 JUDGE BRENNER Well, the entire preamble to O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7307 O 1 the requ1ations says it is the Licensee's responsibility 2 or the Applicant's responsibility. But that doesn't go 3 to the point that the time would not be ripe to show how 4 implementation of it can be achieved, arguably, until 5 the coordination is worked out.
6 HR. SEDKY: That could be true of virtually 7 anything. I mean, they have an obligation to, as we 8 read the regulations, to give the content of messages 9 that go to the public, even though it may not be they 10 who are actually making the public announcements. They 11 have an obligation to give evacuation time estimates, 12 even though it may not be they who are doing the 13 evacuation. Even under the 1 east of conditions, they 14 have an obligation to assess and monitor potentia 1 15 off-site consequences, even if it is a trivial event 16 within the plant.
17 So all I can say is that our position is that 18 the fact that the imp 1ementation of the response might 19 not be the uti11ty's responsibility, ss we read the 20 regs, they are required to set forth the means by which 21 those things are to be done in a low-power or high-power 22 or full-power license.
23 JUDGE BRENNER: Well, this may be O 24 hypothetica1, but if the meens depend upon the 1oce1 25 governmental agencies and we find out later that the O
ALDERSON REPORTING COMPANY,INC, {
400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7308 I agencies are saying no, we won't or can't do that, then
(])
2 that would reinforce the point that we need that piece 3 of the picture before we litigate it.
4 MR. SEDKY Sure. I mean, I am not aware 5 of -- that could be a very easy thing, and' maybe this is 6 a tempest in a tempot.
7 JUDGE BRENNER: I think we are both using this 8 as an example to better understand it.
9 MR. SEDKYa I would suggest what you do there 10 is call up the county sheriff's office and say do you 11 have a list of deaf and hard of hearing, and gee, do you 12 think you guys could undertake to go knock on their 13 doors? And at least that would be a first step. And if 14 the county says, the sheriff's office says we would love 15 to do it, then you would solve the problem. -
16 To our knowledge, that hasn't been a ttempted.
17 JUDGE BRENNER: Yes, and LILCO agrees that it 18 isn 't covered, at least at this time.
19 Well, if we put this off for reasons that we 20 can't litigate it during this first phase, without 21 regard to whether we should have, say if a low-power 22 motion is later filed, then hopefully the par, ties will 23 have talked about how this could be achieved, including
() 24 coordination, and maybe they heard your suggestion just 25 now and they will make you the instant expert on it. -
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 l - _ ._
7309
() 1 MR. SEDKYs There will only be, I gather, 2 couighly two weeks f rom the time tha t the testimony is 3 filed here and the county's plan is ready. So maybe it 4 will all be wrapped up in one ball of wax after all.
5 JUDGE BBENNER: That would be nice.
i 6 There were a lot of fuzzy dates in the 7' county's estimates, and a lot of magic words said about 8 each of those dates between the date that A would give 9 it to B, and then the date tha t B would give it to C, 10 and then the date that D approved it from C, and if you 11 project all of that out, the magic date by which the 12 . county would be willing to have the plan litigated was 13 not that first date. But if we had it all together now, 14 we wouldn't be very worried about the dichotomy, at 15 least not at this point.
16 How, contention EP3 relates to medical and 17 public health support. There is some guidance on this 18 since the filing of the contention and objections, and 19 an Appeal Board decision in the San Onof re proceeding --
20 and I trust you are cognizant of that -- and the Appeal 21 Board decision was issued July 16. It is ALAL, A-L-A-B, 22 680, and about pages 13 to 21, or thereabouts, in the 23 SLB opinion, there is guidance offered on this type of l (') 24 issue, and it indicates a much more circumscribed scope 25 than the licensing board in San Onofre believed to be
()
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7310 i ,'
?
(
the' case.
(]) 1 2 Before this guidance was a vailable, the
/
~ 3 Staff's objection was the dichotomy between on-site and 4 off-site. The distinction the Appeal Board draws is not 5' quite that same distinction but indicates that planning 6 for.a much lesser number of people with radiation 7 contamination and traumatic injury problems -- those are s s 8 the two criteria the Appeal Board @elieved'must be s ..
9 present -- a much lower number would obtain. Obviously i
10 that greatly affects the scope of what is involved, and 11 in light of that, we think we would hold off on the 12 admission of this until the August 20 filing when we 13 think it would be appropriate for this phase because 14 even though it might involve the potentially for people i 15 off-site being injured and contaminated, it would be 16 essentially the same factual situation as to what is
. i 17. available, sedically for the on-site people a well as the 18 off-site. And therefore we could go ahead and litigate p .' s 19 it now.
20 But, as stated, it can be much more f
l '
21 particularized given the guidance we know was formulated 22 bef ore this guid ance , obviously , just by the chronology, i 23 and hopefully the exchange of information as to what
() 24 facilities are available for how many people, given that 25 guidance, can be exchanged, and if there is still a O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
_ . . - ~ _ _ _ _ _ _ _ _ _ . _ _ . _ . _ _ , - _ . _ _ _ _ _ _ _ . _
7311 1 contention, then we would expect it to focus on the fact 2 that their only provision is for X number, and this is 3 inadequate, and so on.
V 4 In addition to just the numbers of people, 5 there is also involved in the contention the location of 6 the facility, and we recognize that dispute might 7 remain. Tha t is, subparts 1 and 2 of A might remain.
8 , Incidentally, when we get the further filing, 9 Hr. Sedky, it would be very, very helpful if the 10 contentions could reference the particular parts of the 11' plan that are the focus of the contentions, and that 12 will help us take a look at it.
13 MR. SEDKYs By all means.
14- JUDGE BRENNER: Now, if the plan doesn't 15 provide it anywhere, you will have difficulty 16 referencing th e section.
17 MR. SEDKY: We will also point that out when 18 it happens.
19 JUDGE BRENNERs And then perhaps the response 20 can focus on where LILCO thinks it is covered, and the 21 Staff.
l 22 Where is Central Suffolk Hospital? Is it 23 within the 10 miles? Does anybody know?
O 24 na stoxr- we ere tota it te 9 11e= <r = the 25 site.
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7312 JUDGE BRENNER: Hopefully the parties can
(]) 1 2 discuss whether or not -- LILCO can discuss why, in its 3 view, it doesn't believe the facility would be precluded 4 by that distance, and maybe we can get a better focus.
5 For what it is worth, I am familiar with at 6 least one plan where by far the best f acility in the t
7 area was, I think the 10-mile border literally went 8 through the facility, and it was determined that that 9 f acility should be used because it was such a good 10 facility, and special arrangements were made for the 11 necessary staff to be there.
12 I don't know if that would apply here or not.
13 HR. SEDKY: That goes to subpart 3, I think, 14 Your Honor.
15 JUDGE BRENNER I was thinking of subpart A1.
16 Tha t is the f act that it --
l '
17 HR. SEDKY No, I just meant that the latter 18 part of your observation dealing with the adequacy of 19 the staff and so forth goes to subpart 3, or at least l
20 our subpart 3 goes to that comment.
21 JUDGE BRENNER: My comments were only meant to 22 point out that it would appear to be more than a f actual .
l l 23 matter rather than a per se legal matter, and the
() 24 parties should discuss it, and we would defer admitting 25 it, but only until the August 20 refiling, and then we O
ALDERSON REPORTING COMPANY,INC,
^
400 VIRGINIA AVE., S.W., WASHINGTON, D.C 20024 (202) 554 2345
7313 will take a look at the basis and specificity in light
(]) 1 2 of the discussions among the parties and the Appeal 3 Board's guidance.
4 (Pause) 5 JUDGE BRENNER: Now, contention EP3B involves 6 tne adequacy of ground transportation for transportation 7 of contaminated persons, presumably on the site, at
)
8 least in this phase, to treatment facilities, given 9 congested traffic conditions.
10 One question the Board has is even assuming we 11 are talking about treatment of on-site people, employees 12 who are emergency workers who report on-site to augment 13 the staff, how could we litigate the congested traffic 14 conditions without waiting for the second phase when we 15 are reh11y going to focus on the traffic conditions?
16 HR. SEDKY: We have evidence that will be 17 ready on that issue probably within 10 days.
)
18 JUDGE BRENNER: If you have evidence ready on 19 that issue, do you also have evidence ready on traffic 20 congestion during the entire 10 miles?
21 MR. SEDKY We will have that, I would assume, I Judge Brenner, within about 10 days or so, and we will
- 22 23 proffer it over the objection of the parties if
() 24 necessary to the Board.
( 25 JUDGE BRENNER: Well, we are not talking about ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345 ~
.= ____ _____ _ _ _ _ _ _ _ _ _ - - _ -
7314
' rou O =e iaa ta e for the cir=t ti e ia te=ti oar- re 2 talking about the very much similar to LILCO's providing 3 the emergency plan. You are talking about providing the 4 county's assessment.
5 MR. SEDKY: This goes really to the next topic 6 on the agenda, which is the request for production of 7 design basiss. I believe we have stated all along that 8 when we had this information ready, we would produce it 9 to them, as'we just did, with respect to the social 10 survey and the poll that was run , and we expect, I said, 11 to have the traffic analysis done within 10 days or so, 12 and as soon as it is done, we will cartainly give it to 13 the county.and the Board and the Staff, and they can 14 chew on it or ignore it as they are inclined to do.
15 e
16 17 18 19 20 21 22 ,
23 24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRG!NIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
.. - .a__ -.
7315 JUDGE BRENNER: Incidentally, if we got this
(]) 1 2 survey, I don 't know about it. ,
3 HR. SEDKY Well, it was a survey that I think 4 was made available to the Board by Mr. Lanpher. Perhaps 5 he should address that.
6 NR. CHRISTMANs We don't have a copy, either.
l 7 JUDGE BRENNER: I don't want to discuss it 8 now. We are not asking for a copy of all nitty-gritty 9 discovery materials, obviously, but things that woul'd be 10 in the nature of the county 's report; even if not in 11 final form, such as the type of survey we would like.
12 Copies of that, and also, the report that you anticipate 13 in the next 10 days or so regarding traffic congestion.
O k/ 14 MR. CHRISTMANs Judge Brenner, I suppose it 15 goes without saying that we would like to have a copy 16 ourselves, and we don't have one yet, I believe.
17 MR. SEDKY: Of the survey?
18 NR. CHRISTMAN Of the survey. At least not 19 that I am aware of.
20 JUDGE BRENNER Given the off-site elements, 21 is this something we should litigate in the first phase, 22 recognizing that it also has an on-site element? This 23 is one of those tricky ones. Where do yc2 craw the line
() 24 on this one? Are you talking about injured people 25 onsite; contaminated, injured people onsite, and the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
7316 1 effect of traffic congestion on getting proper treatment 2 for them?
3 If a necessary part of the litigation involves 4 the traffic congestion, aren 't you very quickly involved 5 in what we had contemplated for Phase 2? That is, 6 talking about the effect of congestion in the event of 7 an emergency.
8 HR. BLACK: Judge Brenner, I am unclear at 9 this point as to whether the county has conceded at this 10 point that we are only talking about on-site 11 contaminated individuals. I know that you have drawn 12 that distinction, but it is not clear that the county 13 has yet.
14 JUDGE BBENNER: For the sake of argument, even 15 if we keep that distinction, this is one of those hard, 16 borderline ones, and it seems to us in the dichotomy 17 between what you go ahead with and what you don't go 18 ahead with.
19 HR. BLACK: I think it is a simple matter that 20 we can go ahead with at this point. I don't think that 21 the county plans would greatly involve that issue.
22 JUDGE BRENNER: What does LILCO think?
23 HR. CHRISTMAN: I think we could probably go 24 ahead on this one now, too, although at some point I 25 suspect I might want to ask the coun ty whether all of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
7317
() 1 their evidence will be ready in time, or whether there 2 will be additional evidence later on that might change 3 the issue.
4 MR. SEDKYs Perhaps this is taking it out of 5 turn, Your Honor, but one of LILCO's objections was. that 6 they wanted to deal with all traffic-related issues at 7 one tim e , a nd the traf fic-related issues will not only 8 affect the ability to furnish medical services to 9 contaminiated individuals. It will affect evacuation 10 time estimates, it will affect the monitoring function.
11 Again, I just have a hard time understanding 12 the basis for litigating traffic with respect to the 13 hospital and not litigating it with respect to 14 . monitoring or evacuation time estimates, particularly 15 since the applicant here has asked that those issues be 16 litigated at one time.
17 JUDGE BRENNER: Yes. They a re talking about 18 consolidating it with contention EP6B and contention 19 EP9D, which involve traffic the other way, if you will.
20 That is, LILCO people getting to the site a nd off-site 21 augmentation authorities getting to the site. But the 22 traffic element is the same.
23 I am not disagreeing with your comment. I am
() 24 vondering whether we could litigate -- I don't know that 25 you necessarily have to litigate traffic for EP3B. It
~
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7318 depends upon what they propose. If they propose not to
(]) 1 2 transport those individuals, they would have to come up
. 3 with a good reason as to why they don't think they have 4 to. That may not involve traffic.
5 However, that would be inconsistent with their 6 argument that they want to consolidate it with the 7 traffic aspect.
8 MR. SEDKYs I guess this goes back to one of 9 the concerns I have that may be raising a lot more 10 serious problem than we had heretofore seen. If we are 11 trying a full-power license, it seems to me that that is 12 a germane question. If we are trying a low power 13 license, as I read even the low power regulations, --
14 set aside our disagreement as to chether they have to 15 meet with all of the 40 7B provisions -- that at a 16 minimum, they have to establish that medical services 17 are available for contaminated individuals.
18 Our approach and the kind of facts that we 19 would be introducing on the availability of medical 20 services would be difference if we were trying a 21 low-power license application or a full-power license 22 application. And I suggest again to the Board that 23 there are some serious notice problems here in terms of
( 24 all of a sudden being told that there is a motion on the 25 table a week from Friday for a low-power license and it ALDERSON REPORTING COMPANY, INC, !
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7319 is granted because we find A, B, C, D, and our position
(]) 1 2 is that we have not had an adequate notice and hearinc 3 on that application.
4 JUDGE BRENNERs I thought I just indicated on 5 EP3 -- and I am sorry if I was not very clear, and that 6 is the example-you are talking about -- that medical 7 provision for contaminated, injured people, -- and both 8 must be necessary under the Appeal Board 's new guidsnce 9 -- that even though the line isn't drawn between to off-site and on-site by the Appeal Board -- that is, it l
11 is only contaminated, injured individuals whether they 1 12 be a member of the public, off-site or on-site -- we 13 would go ahead and try the whole thing. Because I am 14 agreeing with your observation that that is not a 1
15 severable one.
16 MR. SEDKYs Yes, but mine goes a little 17 further than that, and perhaps I am anticipating and I 18 shouldn't be. But I have already gotten some vibrations 19 from Your Honor as to, for example, the evacuation time 20 estimates. Before the lunch break you were suggesting l
} 21 tha t that might be one of the areas that is not 22 appropriate to be tried now. And with all due deference 23 to the Board, I would suggest that it is an arbitrary
() 24 distinction to say that we will try traffic issues as 25 they pertain to furnishing hospital services to 0 l ALCERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7320 l
contamina ted individuals, but we will not listen to Q 1 2 traffic evidence on evacuation time estimates.
3 JUDGE BRENNER: I don't know very well how to 4 separate those two either, and tha t was the point of 5 discussion over the last 10 minutes. And I don't 6 understand how we could be ready to try evacuation time 7 estimates unless we are also ready to look at evacuation 8 routes, and I don't know how we are ready to do that 9 unless we are also looking at the shadow effect, and 10 there you are.
11 MR. SEDKY4 We had contemplated, quite 12 frankly, Your Honor, that we would try those issues, and 13 we have witnesses who are ready to testify and to have 14 the Board make findings as to these quastions.
15 JUDGE BRENNER: I am confused, because I 16 thought that was a large element of the off-site plan 17 tha t the county urged very strenuously that we hold off 18 on.
19 MR. SEDKY: We were trying, as far as I 20 understood until this afternoon when this whole question 21 of a low-power license came up, and it only really came 22 up new to me. I don't want to cast any aspersions on 23 either the staff or LILCO or other counsel.
O 24 But we were overetiae ea the de=1- thet we ere 25 prepared to try the adequacy of the on-site plan, as
~
O ALDERSON REPORTING COMPANY,INC,
~-
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
4 7321 1 tha t adequacy is measured by the 16 criteria in Section
[}
2 47B, including the whole question of evacuation time 3 estimates. We were going to put in evidence as to the O 4 shadow phenomenon, we were going to put in evidence as
~5 to the traffic. conditions, we were going to put in 6 evidence as to what likely responses are of the 7 population of the ' region or the surrounding area to 8 various scenar%os of accident conditions.
9 And; quit'e honestly, we are going to proffer 10 that testimony in whatever hearing there is. If this 11 turns out to be a low-power proceeding, we are going to 12 proffer that testimony in any even t, and the Board can 13 take it or not as it deems fit.
14 JUDGE BBENNER4 Then what are we waiting for?
15 If the county is going to come up with that at the end 16 of September, why co uldn ' t we be going ahead with 17 everything now? I am obviously not understanding 18 something because it apparently inconsistent as I hear 19 it.
20 MR. SEDKY: It is not. I may not be 21 explaining it adequately. The same people who a re 22 working with the county and preparing the county's plan, 23 these very same experts who are experts I think
() 24 recognized on traffic flow and congestion -- let's take 25 that as a simple issue; traffic congestion. They are O
V e
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554 2345
7322 l
{} 1 going to be advising the county as to what do you do 2 about evacuation given these traffic congestions.
3 These very same people have looked at LILCO's O 4 plan and looked only at LILCO's responsibilities now 5 with 50.47B; not off-site, but on-site responsibilities 6 with respect to notification, public education, and I 7 could run through the litany, protective ac tions, 8 assessment and monitoring. And they have said in their 9 opinion as experts -- and we will put on testimony to -
10 that effect -- this portion of the plan is inadequate.
11 The 6.3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> that they show as their w'orst case in 12 evacuation time estimate, which they are required by the 13 regulations to furnish, specifically required, are
() 14 inadequate. We want an opportunity to put on testimony 15 to that effect.
16 And given the evidence that we are going to 17 put in on the record, or proffer, as the case may be, 18 that the six hours is just --
you cannot meet it, and 19 that you have to deal with th e real world, whatever that 20 is, whether it is 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> or 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br />.
21 So that effort is going to be ready by the
,22 15th. I mean, to some extent, we are being taken by 23 surprise. We are in the process or will soon be in the 24 process of working with these people to provide this j s
25 testimony for the 14th.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
l 7323
(} 1 JUDGE BRENNER: But I thought that was the 2 whole uncertainty of what was left to do in the county 3 plan, and that is, taking a look at the ability, or O 4 taking a look at the feasibility of protective actions 5 in the zone.
6 MR. SEDKYa That is correct. Perhaps the 7 difference -- I mean, we are only talking two weeks, 8 mind you, between having these people prepared to 9 testify as to the on-site responsibilities of the to utility and the additional two weeks. And so far, I am 11 told by the county officials that we are on target for 12 the October 1 deadline.
13 Obviously, for the county there is a
() 14 comprehensive plan that they have to develop. They hav e 15 got to go through the process that tre utility went 16 through, looking at all of the possible ramifications, 17 putting it all together.
18 But with respect to discrete issues such as 19 the litany that I keep referring to, they a re prepared, 20 or we are prepared to offer testimony on those issues on 21 the 14th of September.
22 JUDGE BRENNER: I am hearing this for the 23 first time from the county. Especially, I recall
() 24 vividly Mr. Brown very vigorously, to be charitable 25 about it, arguing that no one could litigate those O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASH.NGTON, D.C. 20024 (202) 554 2345
i 7324
, 1 elements that might touch upon what the county, within
'}
2 its own prerogative, was still looking at, until it was 3 blessed by every political entity that he could think of C 4 within the county. Which pro ~ cess was going to take some 5 period of time.
6 HR. SEDKY: Obviously, the county is required 7 to go through the legislative process. All I am saying 8 is that we are prepared -- to reiterate, we are prepared 9 to offer testimony on these issues whether we are trying 10 it offsite, or whether we are trying a low power or 11 high-power license, or a full-power License.
12 JUDGE BRENNERa And you would have the 13 evacuation routes included and everything involved in a
() 14 possible evacuation?
15 MR. SEDKY: No. What we would have, -- as I 16 understand, we were asked to prepare for trial of the 17 LILCO plan; not parts of the LILCO plan, but the LILCO 18 plan, and that is what we have been doing since March.
19 And we look at those provisions of the regulation 50.47B 20 and they are required to do certain things. To take a 21 simple example, again, the evacuation time estimates.
22 There is doubt that they are required to do that. I 23 think everybody concedes that they have to require those 24 estimates.
25 We look at those estimates and say they are O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., NVASHINGTON, D.C. 20024 (202) 554 2345
7325 1 inadequate because we believe and we will plea in
(}
2 evidence that the traffic condition in Long Island, 1
3 because of its particular configuration, are going to be l
() 4 so horrendous that you are not goicq to see -- that six '
5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> is just an unreasonable estimate; that it doesn't 6 account for the statistical.information and so forth 7 that is being developed.
8 MR. CHRISTMAN Judge Brenner, an I the only 9 one that is confused about what there is left for Phase 10 2 as far as the evidence that the coun cy is going to 11 present? I just don't understand, I guess.
12 MR. SEDKY: It was following the Board's 13 direction that we acquiesced basically in this whole
() 14 notion of trying the LILCO plan first. And we have 15 geared our entire effort to doing that, and now we seen 16 to be being told that well, we are really not going to 17 try LILCO's plan; what we are going to do is try maybe 18 six or seven elements of it.
19 JUDGE BRENNER: Well, the county told us we 20 couldn't go into those elements. I am simplistically l
l 21 paraphrasing, but I don't think terribly inaccurately.
l 22 And without prejudice to the possibility that we might 23 disagree later, we saw no reason to go ahead and
() 24 disagree now, and that is why we are talking about this 25 dichotomy between Phase 1 and Phase 2. And I am i
O -
ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
1 7326 '
{} 1 confused as to what is left, also.
2 MR. SEDKYa Let me ask Mr. Lanpher to address 3 tha t. He was much more involved at that scheduling b
a 4 phase than I was.
5 MR. LANPHER Judge Brenner, just briefly, the 6 position that the county took f rom the start is that 7 there was no county plan, and incidentally, we urged --
8 and you disagreed -- we urged that consideration of the 9 on-site plan should also be deferred until everything 10 could be taken up as a single, unified whole. And you 11 disagreed.
12 JUDGE BRENNER: Yes, you did, and we disagreed 13 with you.
} 14 MR. LANPHER: At this point in time, there is 15 no county plan still. That county plan we think will be 16 completed in draft by October 1. We are on schedule to 17 be submitted to the county executives. We submitted it 18 to be submitted to the county legislature; if approved, 19 it will be submitted to this Boa rd.
20 At the same time the planning ~ effort has been 21 going on, these experts have been asked to look at the 22 LILCO plan, pursuant to the Board's schedule, which has 23 been proceeding. So I think it is not correct to say
() 24 tha t we are li tiga ting everything that migh t be in a 25 county plan.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 234~., '
7327
{) 2 1 The fact of the matter is from th e county 's point of view, when we have completed this plan, and 3 when a plan is approved by the legislature, we don't O 4 intend to be litigating it in the sense of an offensive 5 thing; we intend to be defending that plan, whatever 6 plan is adopted by the legislature, assuming that the 7 legislature adopts a plan. We are working toward that 8 goal of the best possible plan.
9 It is not inconsistent with not having a 10 county plan, for Mr. Sedky also to say that we are ,
11 prepared to litigate LILCO's responsibilities oursuant 12 to its plan. That doesn't mean that we are litigating 13 the county plan.
( 14 JUDGE BBENNER: As you phrased it, that is not 15 inconsistent. But then wh'en you delved into the 16 subject matter of what.you are talking about, the 17 consistency becomes unglued somewhat. Let me ask you 18 this question: Would we have to litigate the 19 feasibility and applicability of evacuation again af ter 20 the county plan is ready?
21 HR. LANPHER: You ask me to speculate, l
22 obviously, from the county's point of view. The county, 1 23 with respect to its responsibilities, is going to 24 prepare a plan which it thinks within its
(])
25 responsibilities responds to the evacuation necessities.
O.
ALDERSON REPORTING COMP ANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7328
() 1 Now, people may disagree with tha t and ask to 2 litigate it. I don 't know. I can't conceive of the 3 county submitting a contention which says that. its
,g V 4 evacuation plan is inadequate.
5 JUDGE BRENNER: But these evacuations -- a 6 consideration of the traffic congestion during an 7 emergency and so on would be affected by what the county 8 plans to do in terms of traffic control and other 9 governmental agencies arguably plan to do in terms of 10 traffic control. And presumably, that is part of what 11 would be in the plan.
12 HR. LANPHER: That is true.
13 JUDGE BRENNER: Is all of that going to be 14 available in time to try it for this earlier phase?
15 MR. SEDKY Not certainly what the county's 16 response to the perceived traffic congestion. Let's 17 assume just hypothetically, just because it might be 18 easier to focus on this, that there is no requirement 19 for a county plan. Just hypothetically, that everything 20 --
that LILCO is the whole ball of wax here. All we are 1 21 saying is on the one we are on right now, getting to the 22 hospital, is tha t we want to put in evidence as to the 23 likely traffic conditions. They have an obligation to
() 24 assure that there is adequa te medical f acilities 25 available.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7329 1 Similarly, they have an obligation to give
(}
2 somebody notification or evacuation time estimates. We 3 want them to says here is what the traffic conditions 4 are going to look like. We don 't have to have concluded 5 the county's planning -- and this is what I am saying --
6 in order to put in evidence as to f acts that we contend 7 are material and relevant to LILCO's obligations.
8 JUDGE BRENNER: Well, let me just suggest 9 without eliciting a response that the traffic conditions 10 could look considerably different depending upon what i
11 the county is going to be doing, the county and other '
12 governmental agencies. And that is why I am having 13 trouble being able to go ahead and try the effect of
(~)/
(- 14 traffic congestion until we see what the county plans on 15 doing. And you are telling me for that aspect of 16 traffic congestion we will have to wait until the plan 17 is finalized and the approval process contemplated takes 18 place.
19 You know, maybe I am wasting everybody's time 20 and buying unnecessary trouble at this stage. No one 21 objected to this subpart of the contention, but I am 22 vondering if the staff and LILCO contemplated how they 23 would litiga te traffic congestion at this point. Staff ?
() 24 MR. BLACKS I wish there was an easy way to 25 take care of this fog which has descended upon this
(
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D C. 20024 (202) 554-2345
7330
() 1 room, but I certainly understand what you are getting )
2 a t, Judge B renner, and it is inconceivable to me that 3 the county may wish to contest at this point something 4 tha t they have a vested interest in in developing their 5 own plans.
6 It seems to me that when they are developing 7 their own. plan, they will clear up the problem. So I 8 can certainly understand why the Board would like to 9 defer some of these things in hoping that they may get 10 washed out in the county's development of its own plan.
11 With respect to -- and I would just say that 12 perhaps it would be easier, I think I understand wha t 13 the Board is saying and I think it might be easier, 14 instead of trying to go through all of these contentions 15 and re-argue all of these points with respect to what 16 should be done now as opposed to later, that I think the 17 Board has a good handle on this. And I would just 18 suggest that we bite the bullet and the Board, in its 19 own good discretion, say that these will be litigated 20 now and those will be litigatad later. And I think if 21 there is any definition objection to that proposal by l
22 the Board, they can be taken up at a later point.
23 And I also think that the county at this point
() 24 understands where everybody else's position is and that 25 they may be able to clear up some of those matter when O
ALDERSoN REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7331
() 1 they further define the contentions.
- 2 But it is confusing at this point.
3 JUDGE BRENNER: Well, we are going to run out 4 of time at some point and we are going to go more 5 quickly on some of the others, although there are one or 6 two that we are going to have to slow down on again.
7 But since you didn't object, --
and I am going to ask 8 LILCO the same question in a moment, -- but staying with 9 you, Mr. Black, since you didn't object, how did you l 10 contemplate litigating this contention now,.and the 11 related EP6B and EP9D? Related in the sense that --
12 MR. BLACK: Which contention are you 13 specifically referring to?
14 JUDGE BRENNER: EP3B.
15 HR. BLACKS On EP3B, if you recall, we 16 objected to this contention to the extent that it was 17 referring to of f-site contamina tion of individuals. It 18 is our position that the regulations only contemplate 19 arrangements to be made for on-site contaminated 20 individuals, and we have tried to hold to that ground.
21 JUDGE BRENNER: Let me stop you. Even if we 22 stayed with that definition -- and I think if you look 23 at San Onof re that is not quite the division they drew l
() 24 -- but even if you stay with that definition, the 25 contention is -- and maybe I am rephrasing the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
7332 1 contention, but let's say the contention is as to the 2 on-site people who are contaminated and injured, you 3 won 't be able to get them to the necessary off-site 4 treatment because of traffic congestion. So there is 5 your on-site people.
6 But, you are involved in traffic congestion, s I 7 and the contention very clearly talked about off-site 8 traffic congestion.
9 MR. BLACK: I must honestly admit that when I 10 thought about this, we would probably come up with the 11 conclusion that there would be so few on-site 12 contaminated individuals that traffic congestion may not 13 play a big part.
14 JUDGE BRENNER: Let me play with this a little 15 more. I can name two other contentions where you have 16 got the same problem, and I could have asked the same 17 question; EP6B and EP9D. The contention is that you 18 won't be able to get your necessary on-site resources; 19 in one case LILCO and in another case, other entities, 20 because of traffic congestion. And there was no 21 objection from the staff as to either of those subparts.
22 You see, it is easy for us to say all right, 23 no objections to the contentions admitted, but I thought 24 we ought to think ahead a little bit about what that 25 involves, in this area at least.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7333
() 1 MR. BLACXs Point well taken.
2 JUDGE BRENNER: I don't have the answers; I 3 just have the questions.
4 MR. CHRISTHAN: Judge Brenner, there may be nos 5 answer, but I think there is probably considerable 6 difference between objecting to the contention as it is 7 or not objecting. And on the other hand, the separate 8 questiCn of whether it ought to be tried now or later.
j 9 I guess our position on this was that in the 10 first place, of course, it ought to be consolidated with l
11 those three that you mentioned -- should be consolidated 12 because they were of like kind. And I suppose we could 13 have litigated it in Phase 1 perhaps by showing that
( 14 these activities, the transporta tion of individuals, 15 would take place before the roads got too congested, in 16 the typical case.
17 Also, we would have been prepared I think to 18 look at whatever evidence the county. produced about 19 congestion, and whatever that showed , tried to address 20 it at that point.
21 I concede, however, that it is a difficult 22 question, and that it probably is more approp-' ate for 23 being tried in the second phase.
() 24 JUDGE BRENNER: Just to make life more 25 dif ficult f or you, and maybe to make you suff er through O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7334 1 some of the distinctions the Board has suff ered through f) 2 the last few days in looing at Phase 1 versus Phase 1, 3 and low power versus full power possibilities and so on, 4 that would be fine to put it off and then it would meld 5 very well with the factual situation of what is going on 6 with respect to traffic.
7 However, if and when you ever wanted to 8 consider a low-power license, arguably, one element of 9 that is the augmentation of on-site resources, which 10 puts you smack into at least 6B and 9D.
11 MR. CHRISTMANs And that is why we didn't 12 object, I suspect.
13 (Laughter.)
C. 14 MR. BLACKS And, Judge Brenner, I suspect that l 15 we didn't object from the standpoint that we felt that 16 we have seen nothing that the county has proposed to 17 date, or that LILCO has proposed to date that would 18 present any problem in the staff's mind with respect to 19 evacuation. And we felt that we could litigate that 20 question at +his time in the absence of the concrete 21 county plan.
22 JUDGE BRENNER: Do you mean overall evacuation?
23 MR. BLACK: I meant insofar as congestion,
() 24 road congestion.
25 JUDGE BRENNER: Well, I tell you what. In O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W., WASHINGTON, D.C. 20024 (202) 554-2345
- - - - = - - - - - - - - = = - - - - - - - - - -_ _-_ _-_ - - - - _ -_ . -. . -. . . - . . - . . .
7335 O oraer to aet == oer the at aere ==a 1a the d e=ce or l
2 objection, we migh t -- in f act , we probably will --
3 admit it. I assume you bear this whole discussion in 4 mind as the discovery proceeds and the testimony is 5 prepared.
6 I don't know about consolidating 3B -- that 7 has a bit of a different nuance as contrasted with 6B 8 and 9D, and the proof migh t be the same and it might be 9 different. We are interested in further consolidation 10 than has occurred to date, and we recognize the 11 possibility, as has been pointed out by the county, that 12 we can allow consolidation by scheduling of the 13 testimony.
14 But we think it is better to consolidate as 15 much as you can, and then recognizing there are some 16 things that require those, further refinements of 17 scheduling issues, whether the testimony is similar or 18 the same. We recognize that the organization as 19 presented is a rational one; however, when you take a 20 look at the litigation of the issues, there might le a 21 reorganization in some respects.
22 And we hope by the 20th to see that. Not 23 necessarily each and every issue that is the same, but O 24 es 1ong es we heve been te1x1ng eeoet treffic 25 congestion, 6B and 9D certainly could be consolidated.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
, 7336 l
)
You were talking about the augmentation of the on-site
(]). 1 2 staff and traffic congestion. Unless there is something 3 peculiar about what organizations those people belong to 4 -- and maybe there is -- but between now and August 20th 5 you can talk about that.
6 3B perhaps should also be consolidated with 7 them, but I also recognize an argument the other way, 8 and we can go either way on that. And presumably, the 9 parties will do what is in their best interest. And if 10 the county chooses to keep that one separate it will be 11 okay, but we might have to look at the schedule.
12 I don't know if they have helicopters on site, 13 for example. That might make a difference in whether or 14 not -- I don 't know enough to know whether the proof 15 would be the same. The example of helicopters -- I 16 raise that on1y to indicate depending upon where the 17 proof is going to go, it may not be ef ficient to 18 consolidate them.
19 MR. SEDKYa As I indicated in our pleading, we 20 recognize that there are two ways one could go. Either 21 take the common issues of f act and then sort of build 22 your legal building blocks around those, or vice versa, j 23 and we chose the other, we thought because it was 4
() 24 clear. We have really no pref e rence . And if it would 25 be helpful to the Board to do it the other way around, l l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7337 1 we will do it the other way around.
2 JUDGE BRENNER: I think it would be to gt 3 more of the common elements together, and not to the O 4 point of interfering with your presentation, of course, 5 but we think it would be inconsistent with an orderly l
l 6 presentation. On the one example, when you get to the l 7 EP20 series of NSCs, those are examples of ones that can 8 be consolidated, even among themselves within the EP20 9 group. And also, with some of the county's we think.
10 Let's finish just the last subpart of EP3 and 11 then we will break. I have a very simple comment on 12 this one. Whether or not up-to-date agreements exist 13 for medical services in this case, and for other 14 services in the case of other contentions, is a readily 15 ascertainable fact tha t we don't want to litigate unless 16 there is a real problem becught to our attention on 17 August 20th. However, it would be appropriate for this 18 phase if there is such a real problem.
19 So we can go back and see what the situation 20 is.
21 MR. SEDKY Sure. I can only see a problem, 22 and it may not be an ultimate problem. But by the 20th, 23 there may still not be up-to-date agreements, although 24 at some point down the road they fully intend to have 25 such agreements. In which case, just to protect our O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
! 7338 1 rights, we would want to keep the contention; then 2 perhaps dismissing down the road at some point.
3 JUDGE BRENNER: I can understand that, and 4 presumably we can work out such a procedure; perhaps by 5 stipulation or some other means.
j 6 All right. Why don't we break now, as far as 1
l 7 the record is concerned.
8 (A short recess was taken.)
9 10 11 12 13 O ,,
15 i .
l 16 17 i
18 1
- 19 I 20 21 22 23 lO 24 25 iO i
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7339 i
JUDGE BRENNER Okay. Let me see if I can
(]) 1 2 pick up the pace a little bit. Contention EP4, federal 1 3 resources, the staff objected unless it was limited to 4 the example cited. There are no particular examples 5 cited unless the staff meant by reference to the 6 sections of NUREG-0654, aad I guess I would ask the 7 staff what they meant.
8 HR. BLACK 4 I think that what we were trying 9 to do by that was limit it to the federal resources and 10 utility and local resources available to support the 11 federal response. Those were the two specific resources 12 that I think we wanted it limited to. That is not a 13 very particularized limitation.
14 JUDGE BRENNER No. In fact, it is the whole 15 contention. Well, in reality, then, if nobody objects 16 on lack of specificity, if that is the limitation, that 17 is no limita tion, really, which is the whole 18 contention. It seems broad to the Board, even though 19 nobody objected, and we think by August 20th this can be 20 better focused. We also think it is susceptible of 21 settlement possibly. We are not saying that with great 22 conviction. It depends upon what is involved, and the 23 broadness prevents us from being more certain that it is
() 24 susceptible of settlement. Maybe when you get 25 "articularized + hat would be our next followup, but tell o i I
ALDERSON REPORTING COMPANY,INC,
-400 VIRGINTA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345 l
7340 i 1
() 1 us a little better by August 20th what provisions you !
2 are talking about.
- 3 HR. SEDKY: We vill do the best we can, Your 4 Honor. One of our problems is that this is one of those 5 areas where we don't know what we are shooting at in the 6 sense that Appendix E contains a requirement that 7 federal agencies with responsibilities for coping with 8 emergencies be identified, and the assistance expected 9 from them be set forth in the plan, and there is nothing 10 in there, and before we can really formulate a specific 11 contention, we would like to see something in the plan 12 about what they intend to do at the federal agencies.
13 JUDGE BRENNER* If that is the case, you can 14 obviously set forth that subsequent to this conference, 15 that you have ascertained that in fact there is still 16 nothing in the plan'on it. If that is the case, then we 17 will decide what we should do further, whether there may 18 be options, so we are admitting it for litigation even 19 at that point. We understand where there is no 20 information, and I tried to indica te that a t the outset, j 21 why the lack of information might prevent you from being 22 more particular. In fact, that is your contention.
23 There is no information.
() 24 MR. BLACK: Mr. Chairman, I would like to 25 mention in regard to this that th'e plan does make ALDERSON REPORTING COMPANY,INC,
~
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7341 0
ss 1 mention of specific federal resources in that Brookhaven 2 is identified as a federal resource who will be 3 available in the event of an emergency on-site, and it O 4 is so documented in the eme rgency plan, and so I think 5 if there is any specification it should take into 6 account that Brookhaven agreement.
7 JUDGE BRENNER: Okay. That is something that 8 we expect to be ascertained over the next few weeks, and 9 there is a helpful first hint. -
10 Now, EPS, protective actions, we were inclined 11 to do some subparts of these in the second phase. The 12 contention deals with protective actions for emergency 13 workers and the public within the plume exposure pathway 14 EPZ. Subpart A, we could go ahead and do now in the 15 first phase and in the absence of objections, we will 16 admit it now. If the parties have a change of heart by 17 August 20th, they can let us know. Subpart B, we were 18 inclined to think that we had to wait until later. We 19 are a little confused by the dialogue on evacuation time 20 estimates that has occurred just before.
21 Looking at the subparts, we think it involves 22 much of what we thought we would do in the second phase 23 in terms of items that migh t af f ect the evacuation time
() 24 estimates. We also believe, similar to what we said 25 with respect to EP contention 1, that EPS Subpart B1, O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7342
()
1 alleging that local conditions are not taking into 2 account, is just too broad, and we need better 3 particularization, but beyond giving you the opportunity 4 by August 20th to supply that in this contention, and 5 this is an example of why we think EP1 was a catch-all 6 also.
7 I would note in passing that we have great 8 doubts that we could try this during the first phase, 9 and then not have to in essence relitigation the very 10 large portion of it in the second phase. So, we would be 11 inclined to put it off until the second phase, but we 12 will solicit the parties' advice in the filings with 13 respect to filings A ugust 20 th initially by the county O 14 and intervenors combined, and then August 24th for the 15 responses by LILCO and the staff. Think about it, but 16 if you do want- to go ahead duri..g this phage, our 17 comment as to better particularization on that subpart 18 would apply. I am sure you have things in mind, an4 it 19 would help us to know that.
20 The other remaining subparts of EPS, namely, 21 subparts C and D, we also are inclined to put off until 22 the next phase.
23 MR. SEDKYs I am sorry, Your Honor. What was
() 24 2 through 5 of subparagraph B? Is that basically the 25 same issue? There is no objection to any of those by O
ALDERSON REPORTING COMPANY,INC,
~-
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
7343
() 1 anybody.
2 JUDGE BRENNEB In terms of the 3 particularization comment that only applied to Subpart O 4 1. In terms of we would be inclined to put it off until 5 the next phase, that applied to all of Subpart B.
6 HR. SEDKY Okay.
7 JUDGE BRENNER: But we learned more today than 8 we knew before today, and for myself, I haven't fully 9 assimilated it, and that is why we would welcome further 10 revised filings by the dates indicated. The parties 11 know more than we do about what is available and wha t is 12 not available, apparently, at least one party, namely, 13 the county does. We would be inclined +to put of C and O 14 D, and might indicate in our order and, I guess, the 15 general proposition in the order would be, we are 16 putting these off, but the parties are welcome to ask us 17 to consider them the first phase and we are not talking 18 about meeting a standard of convincing us on the 19 reconsideration. We are inviting the further advice, 20 but if there is no such f urther ad vice, then the order 21 which we hope to issue at the beginning of next week 22 will have been the last word.
23 Contention EP6 involves the off-site response
() 24 organization responding to on-site, and these would be 25 non-LILCO organizations. I would'suggest that the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) b54 2345
O I
- 7344 J
i 3
O eti = coa =14 r -- tet oo are the recera- r twinx we 2 have a problem with the Reporter's line.
j 3 (Whereupon, the hearing wasbrieflyohf the O 4 record.) <
! 5
\
! 6 l 7 a
1 8
1
. 9 i
10 11 12 i 13 lO 1. ,
i, 15
, 16 17 18 a
! 19 1
20 21 4
l 22 i 23 24 25 O
i i
- ALDERSON REPORTING COMPANY,INC, 1
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7345 '
() 1 JUDGE BRENNER: Back on-the record.
2 Now, with respect to contention EP6, involving 3 the off-site response organizations augmenting the 4 on-site resources, we make the general comment that this 5 should be examined along with EP contention 9 to see 6 which elements can be consolidated, recognizing that 9 7 involves LILCO personnel augmenting the on-site f orce 8 and EP6 involving non-LILCO people. Nevertheless, some 9 of the subparts may have common elements. The parties 10 in discussing this should consider what the nature of 11 the proof will be to determine whether it would be 12 efficient to consolidate those subparts or not.
13 As to EP6A, LILCO recommends consolidation u 14 with EP9C. That appears to be possibly fruitful to us, 15 and that is one of the examples of 6 and 9. B, we have 16 ta'1ked about this one. We will admit it, and we will be 17 interested in what the parties come up with, and we 18 believe the recommended consolidations again might be 19 f ruitful, depending upon the nature of the proof as we 20 discussed in connection with EP3.
21 EP6C, we agree with the recommended 22 consolidation, and it appears to us that that would be 23 the same type proof. However, more fundamentally, as we
() 24 indicated before, with respect to EP3C, we shouldn't 25 have to litiga te this type of thing, and we agree with O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7346 one possible solution as indicated by Mr. Sedky where
(]}
1 2 there are still things remaining to be done, some 7,
3 mechanism to preserve the county's rights but still U 4 avoid having the litigation on it.
5 EP7, involving training, there were no 6 objections, and we have no great pro blem with it.
7 However, the word " vicinity of the site" in EP7A could 8 be the subject of a failure of the minds to meet between 9 the parties, and in focusing on site, we don't 10 understand why you need the word " vicinity". Now, there 11 may be something we are not thinking of, so by August 12 20th, either delete the word " vicinity" or explain 13 better what the county has in mind.
} 14 MR. SEDKY Judge Brenner, if I may just go 15 back to EP6 for a minute, it wasn't clear to me other 16 than that we have consolidated Subpart A with perhaps 17 9C, where it stands in terms of what phase the Board 18 proposes to litigate.
19 JUDGE BRENNER: This phase. I am talking 20 about the emergency workers reporting on site, though.
l 21 Whether that record is useful or not when you talk about 1
22 wha t non-emergency workers or emergency workers off-site 23 do, we will consider when we get to the nex t phase.
() 24 The re is no magical lyrical thread to these dichotomies, j 25 and that is why it was important to take it contention C) !
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7347
() 1 by contention. So we are not pretending to have any i
2 g ra nd scheme by which the re is a handy ph ra se we could
- 3 summarize where the division lies, and I guess we agree 4 with your comments, Mr. Sedky, in saying that.
5 Besides, foolish consistency is the hobgoblin 6 of small minds.
7 EP7, training, as I started to indicate, we P
8 would like a better handle on what is meant by " vicinity 9 of the site" in Subpart A of that.
10 NR. SEDKY. This may be an area that has been 11 addressed by the new materials. As I recall the old 12 plan, there was some talk about relying on one of these 13 mutual aid pacts between the various fire departments, 14 and our thrust in this contention is that while we 15 understand that there may have been some discussions 16 between the utility and the Wading River Fire 17 Department, that to the extent that in ar emergency 18 others are called upon to assist, th a t they would not 19 know what to do once they got on-site.
20 Now, that may have been resolved in the 21 materials. Certainly subpart B, that may have been 22 completely mooted out, depending upon what we find out, 23 because there is now an entirely new training manual.
() 24 JUDGE BRENNERr All right. I now see I wa s 25 rereading A in light of your comments, and maybe I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
I l
7348
, l aisunderstood what "in the vicinity of the Shoreham
(]) 1 2 pla nt" modified. I was thinking of the location of 3 reporting, and it looks like you were thinking of the 4 area within which the augmentation forces might normally
- 5 be located prior to being called in.
6 MR. SEDKY: Correct. We will make that clear.
7 JUDGE BRENNER Well, if it is the latter that 8 you mean, that is fine. I now understand " vicinity" and 0 don't have the same problem I had before. However, the 10 focus on which organizations you are focusing on, unless 11 your comments really do apply to all organizations, 12 would be helpful.
13 MR. SEDKY We will have to look, as I said, 14 at the new material. If the new material still makes 15 reference to this mutual aid pack, and I hate to call it 16 that because it is some technical ph rase --
17 JUDGE BRENNER: Okay, and here again, a 18 reference to the plan in addition to what better wording 19 you come up with would be helpful to us.
20 MR. SEDKYa We will just make it clear.
21 JUDGE BRENNER: Contention EP8, public 22 education, we think that could wait for the second l
23 phase. In addition, even when we get to th e second )
() 24 phase, we are not going to be real anxious to litigate 25 this to the fullest extent, at least. We think it can O
1 ALDERSoN REPORTING COMPANY,INC, l 400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554-2345 l
7349
() 1 be narrowed, if not ultimat(1.7 settled by ascertainable 2 facts as to what the content of the materials 3 distributed should be, and whether the Prosser's O 4 " reasonable man" can understand the materials.
5 The focus on particular groups with particular 6 characteristics here is a lot different than a focus on 7 groups that are incapable of evacuating themselves, such 8 as school children and institutionalized people and so 9 on. Over here you are talking about whether people who 10 are not under any such guardianship type care can 11 understand materials, and I don't know what 12 particularized account need be taken under the emergency 13 planning rules, and even if some account need be taken, 14 I don't think we would have to litigate that. It should 15 be resolved'.
16 MR. SEDKY4 Setting aside again the timing of 17 when it is litigated, we intend to in whatever form, 18 what we intend to show here is that, for example, by 19 expert testimony for whatever weight the Court may 20 accord it, that certain peo.le just do not respond to 21 these kinds of materials. I mean, it is demonstrated l 22 historically and s ta tis tica lly , and in addition, we l 23 would proffer testimony to the fact th a t regrettably,
() 24 LILCO has extremely low credibility in this community, 25 and that perhaps some other means of educating the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
l
I 7350
() I public ought to be employed.
2 We think these are germane, and the Board may 3 disagree, but.that is the gist of EP8B.
(
4 JUDGE BRENNERs That last point is a lot 5 differen t than in the focus on particular groups. You 6 have time between now and Phase 2. You can consider 7 whether, if you accept arguendo the proposition that few 8 people believe LILCO, you can see how that applies to a 9 situation where when an emergency is declared, whether 10 or not they would believe that as distinguished f rom a 11 aituation where LILCO would say there is no emergency.
12 Lack of believability doesn 't necessarily cut both 13 ways. In addition, you will have to take a look a t the 14 plan in the second phase and see who it is that declares 15 the emergency, and if you want to tell me they don 't 16 believe the clearance of the emergency, which may 17 involve the county, we will see where you are in that.
18 MR. SEDKY: But you are not rejecting this 19 contention.
20 JUDGE BRENNER: The immediate legal ruling is 21 second phase ra th e r than first phase, but I didn't want 22 to lull you into thinking, well, fine, we can just 23 refile the same contention later and we will be okay,
() 24' and tha t is why I am going further.
25 MR. SEDKYs All right.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
1 7351
() 1 MR. BLACK: Judge Brenner,.I am perhaps a 2 little bit confused as to what happened with 8B. The 3 staff certainly has interpreted this contention as O 4 stating tha t LILCO must conduct a social and 5 psychological profile of county residents in order to 6 have -- in order to really effectively evaluate whether 7 a notification or education will have any effect on 8 them, and I at this point'would certainly like to 9 commend to the Board's ruling its noting of the staff's 10 objection to this contention.
11 We very strongly believe that such a profile 12 is not required by regula tions, and certainly is not 13 required in the context of the reasonable man rule that 14 you described earlier, and I think NUREG-0654 speaks in 15 terms of best efforts with respect to notification of 16 the public, and we think that this requirement here that 17 is espoused in this contention goes way beyond the 18 reasonable assurance standard or best effort standard as 19 required by the Commission at this point.
20 JUDGE BRENNER: Well, you can make the 21 objection in the second phase, and I hope that the 22 process that occurs between now and the second phase 23 will be able to better focus the dispute, if any remains.
() 24 I should also indicate I have attempted to use 25 this reasonable man standa rd in the con text of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7352 contentions that we think wa don't have to spend our
(]) 1 2 time litigating. I didn't mean to imply that no 3 provision has to be made for individuals who may be in 4 dif ferent postures than members of the gene ral public, 5 and in fact, to the contrary, we have already talked 6 about people who might be institutionalized or school 7 children or so on. So, I hope I didn't imply that no 8 special account need be taken of different members of 9 the public under the regulations.
10 MB. BLACK: But I thought by your statement 11 you were --
12 JUDGE BRENNER: I meant to imply that it may 13 not go this far, but we can grapple with it again in the O 14 second phase. There is also a Commission ruling 15 applying guidance to licensing boards and other entities 16 of the Commission in light of the Court of Appeals 17 decision regarding psychological stress, in effect 18 limiting it to the Three Mile Island proceeding. That 19 may have some eff ect on this type of contention also, or 20 at least parts of this type of contention.
21 Now, EP9, we have discussed in the context of 22 possible consolidation. Subject to that, we have no 23 other problems with it for this phase. I should
() 24 indicate that even as to those'c'ase calls that we 25 admitted in this phase, and we discussed traffic O
ALDERSoN F4EPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
, 7353 congestion quite a bit, after we see the testimony, we )
(]} 1 2 may have a change of heart if we perceive that we are 3 going to -- that the likelihood of our having to redo it O 4 is high, but we are accepting the parties
- judgment for 5 now that we should plan to go ahead with it.
6 EP10, public information, it is an interesting 7 contention. It is not all aspects of public 8 information. It is talking about whether LILCO has made 9 clear that the county in its view, as stated by the 10 contention, should take a major role in determining the 11 content of public statements concerning actions to be 12 taken during an emergency.
13 We think it would be admissible in this phase, 14 falling in that first channel of communication area 15 between LILCO to the county, even though the ultimate 16 use of the statement might be going on to the public.
17 We are talking about the coordination between the county 18 and LILCO.
19 We also think this is certainly susceptible to 20 settlement, when the two parties involved in the 21 coordination are the parties in litigation, so it would 22 be appropriate for this phase, but we are going to hold 23 off admitting it, and we hope by August 20th that it
() 24 will become something we don't in fact have to litigate, 25 or at least have a better focus of what the problem is, O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
l
)
7354 1
1 because I guess I don't want to have to determine the l
(")T
% l 2 form and substance of those messages unless we are l 3 talking about a real turf battle that we do have to l
(
4 referee, and I hope not.
5 MR..SEDKYa We don't foresee this. This is 6 just one of those areas that there is nothing in there 7 tha t we believe that was required to be put in the plan, 8 and maybe there will be no fight about it.
9 JUDGE BRENNER4 Okay. We will find out.
10 Now, EP11 involves possible overloading of 11 commercial telephone lines between LILCO and hospitals, 12 the Coast Guard and the Department of Energy during an 13 emergency. This is very close to many parts of EP20, or 14 some parts of EP20, and we want it looked at in that 15 light, and some of those subparts can be dropped. I 16 would point out, if this helps the discussion, that we 17 are inclined to disagree that it is very close to 18 EP20B(1), which is one of the ones cited by LILCO, 19 because 20B1 involves, to use a rough shorthanded 20 dichotomy, EP20B(1) involves more of a people problem 21 rather than an equipment problem, but it certainly is 22 awfully close to EP20A(5) and arguably EP20A(1),
23 although tha t is so broad it is hard to tell.
() 24 Beyond the consolidation, I don't know if we 25 are going to have to' litigate whether or not commercial O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7355
() 1 phone lines are going to be overloaded, and I hope we 2 can get some narrowing of the whole dispute involving 3 the notification networks of that first channel to the 4 first line of authorities that LILCO contacts, whether 5 it be through the radio or telephone or dedicated lines 6 or whatever. There should be a coordinated no tifica tion 7 scheme with backups.
8 Now, if there isn't, fine, we will hear about 9 it, but it is hard to get a handle on it when you look 10 at all of the contentions that each subpart of which 11 takes a piece of it, and we think that one or two larger 12 contentions in this case, given the nature of the issue, 13 we are not quarreling, Mr. Shapiro, that there are many 14 issues where it is better to take the pains to subdivide 15 it as you have done in this case, but given the nature 16 of the issue of what should be accorded a network.
17 Now, I don't know. I haven't seen LILCO's, I l
l 18 haven't read LILCO's plan on that ares, and I am going i
19 on a more general proposition, which strikes me 20 initially should be in a plan, and also, I have seen 21 another plan by another utility, and there should be l
22 some orderly scheme, and hopefully a larger contention 23 might be able to grapple with that whole orderly
() 24 notification scheme, dedicated lines to certain 25 entities, commercial lines to others where the O
l ALDERSON REPORTING COMPANY, INC,
7356 communication is essential, what backup there would be
(]) 1 2 to a commercial line, and it doesn 't seem like we should 3 have to sit here and litigate whether the circuits would 4 be overloaded or not. ,
5 One approach might be to assume the 6 possibility of overloaded commercial circuits, and then 7 what the effect of that would be given the other avenues 8 of communica tion and to whom the communications are 9 occurring.
10 MR. SHAPIRO: I think we can work on 11 coordinating those. I quite agree with the approach.
12 That should be a coordinated communication network with 13 adequate backup power sources. The problem is, in 14 reading the LILCO plan, we just were unable to spot 15 them. Perhaps in the further ongoing discussions it may 16 be possible to do so.
17 JUDGE BRENNER Okay. I hope LILCO takes an 18 active role in discussing this subject with the other j
19 parties. I didn't necessarily mean backup power i
20 sources. There are other possible forms of backup. So, 21 we hope to see a substantial reworking and coordination 22 and focusing of what the alleged problems are with i
23 respect to that communication network to the first line
() 24 of authorities. We are not talking about to the general 25 public.
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7357 EP 12, involving the emergency response
(]) 1 2 facility, there are no objections, and we have no 3 problems with admitting it in this phase. I take it 4 that means what is sometimes known as the EOF. Is that 5 correct?
6 HR. SEDKY: That is correct.
7 (Whereupon, the Board conferred.)
8 JUDGE BRENNER: Judge Morris points out that 9 the subparts reference the EOF.
10 Now, EP13, it is obvious to us that the draft 11 objection was dropped because the county responded in 12 Part 2, the staff objection that was never made, in 13 regar to the contents of initial and followup messages.
14 This contention arguably covers two severable subjects.
15 One is the notification to the off-site organizations 16 that would be called for duty on site, and the other is 17 the content of initial and followup messages to the is off-site authorities, and if I am right, I think the l
19 first part of EP13, depending upon what is being 20 contended, would either go with the communications 21 network problem or some of the others. I am not sure.
22 MR. SEDKY: I think we discussed this 23 contention with th e LILCO a ttorneys, and it is really a
() 24 technical question of having to have notification 25 procedures that correlate and perhaps correspond with O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
7358
() 1 various emergency action levels.
2 That may have been ameliorated wholly or at g 3 least in substantial part by this whole new Chapter 4
%)
4 which has been redone concerning emergency 5 classification, emergency action levels.
6 As to the second part, that is another one of 7 those technical ones. We read the regs as requiring the 8 contents of the initial and followup messages, the 9 staf f 's draf t, which we were commenting on, and objected 10 to that provision, and since then that objection of the 11 staff on that score was not in its final filing.
12 JUDGE BRENNER4 Well, I think, and I want the 13 parties to pursue this, and we will' defer admitting it 14 as stated f or this reason, it is appropriate for this 15 phase. The staff indicated it lacked particularity, and 16 we think what we are going to suggest may address that 17 problem also. We think the contention is severable as 18 to those two subjects between the first part and the 19 second part of the contention, and once severed, we 20 think each or those two parts can find a home within 21 other similar contentions, which other similar l
l 22 contention may or may not be better particularized, and 23 I don't think you have the problem any more as to
() 24 whether or not that second requirement should be there.
25 It is just a matter of attaching it better with some of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W., WASHINGTON, D.C. 20024 (202) 554 2345
~
7359
() I the other contentions. It may be settleable in part, 2 if, as you now indicate, if they now have the content of s 3 the messages.
l 4 MR. SEDKY No, it was the first part that I l l
5 believe they have redone their emergency classification 6 and action level scheme, and we will have to take a look 7 at that and have our experts take a look at it.
8 JUDGE BRENNER: Well, maybe they did the 9 second part, too. Maybe not.
10 MR. SEDKY They may have. They may not.
11 JUDGE BRENNER: EP14, there are no objections 12 in the final -- well, there are no objections. We a re 13 willing to try it in the fi'rst phase. Arguably it could O' , 14 be litigated in the second phase, and I am talking about 15 messages intended for dissemination to the public. The 16 ultimate use of it is to the public. However, the idea 17 is to have p re pla nning within that first channel of 18 communication as to what the content of those messages 19 would be, and therefore we are willing to take it in the 20 first phase.
21 However, we are coing to hold off admitting 22 it, because here again we don't think we have to 23 litigate what the content of the messages should be. I
() 24 have seen examples of these before. There are different 25 checklist type forms wherein, so you know, so the county j
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 j
l , - -- - .- . - -
7360 or whatever governmental agency is going to be notified
(]) 1 2 knows what information they are going to ge t. Now the 3 utility has to fill in the particulars that are 4 occurring at the time, but at least what is agreed upon 5 is what subjects that information will consist of, and 6 it is that type of fill-in message very often, and 7 presumably something like that has been arrived at here, 8 and we shouldn 't have to litigate that.
9 MR. SEDKY: This is something we can talk to 10 the LILCO people between now and August 20th, and if we 11 agree that that is basically what the regs call for, and 12 they have done it, then that will solve it.
13 JUDGE BRENNER: Contention EP15 involves just 14 the allegation that LILCO has failed to demonstrate 15 planning and coordination with Connecticut.
16 Connecticut, of course, is within the ingestion EPZ. It 17 is a little broad. It may be that it is broad because 18 there was no inf orma tion available. Is tha t the case, 19 Mr. Sedky?
20 MR. SEDKY That is as far as we could tell.
21 It came from the first plan. I don't believe there was 22 any reference to Connecticut, and tha t was basically the 23 thrust of this contention.
() 24 JUDGE BRENNER: This may be one that could 25 wait until Phase 2 also, and I think we are inclined to
(^) !
I ALDERSON FsEPoRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7361 do that. However, again, we will invite contrary advice
(]) 1 2 as on all of these Phase 1 versus Phase 2 decisions. In 3 any event, even if it is put off until Phase 2, 4 presumably there will be more information available by 5 then, and therefore if you still have a problem, the 6 county still has a problem, we will be able to get 7 better particulars as to what that problem is involving 8 coordination with Connecticut.
9 Now, EP16 involves radiological exposure to 10 emergency workers, presumably on-site. Now, it is 11 whoever is on-site. They may be LILCO personnel. They 12 may be other personnel,and there are no objections, and 13 we have no problem with admitting that contention in n
A/ 14 this phase. Again, even where we have no problem, we 15 welcome a better focusing, if that is possible, by 16 August 20th, including possibly a reference to the plant.
17 On any of these, and I would use EP16 as an 18 example, if you don't change a word, it is still 19 admitted , so you are safe on i t, but if the 20 conversations and discussions better focus matters, we 21 would appreciate that, and so we can deal with one 22 filing, we would expect a new consolidated filing, even 23 as to those that we admitted earlier, a nd a s a minimum
() 24 of where possible, the references to the particular 25 parts of the plan will be appreciated.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINlA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l l
7362 EP17, I want the person who wrote that
(]) 1 2 regulation to explain his or her use of the English 3 language. I don't want to discuss it in great detail 4 now. It strikes us -- originally, it struck us, I 5 should say, as something we should litigate in the first 6 phase. Under the Commission's July 13th final 7 regulation, if you followed the off-site, on-site 8 dichotomy of low power versus full power, the Commission 9 has changed the wording of Appendix E, IV-F(b), and 10 draws a distinction between what is required for low 11 power and full power, and so I will point that out to 12 the parties, if that affects their decision as to what 13 we should litigate now.
[AD
- 14 In addition, we plowed through the language, 15 as the parties did, and as evidenced by their filings, 16 and nobody made ref erence to the statement of 17 considerations, and if you look to the statement of 18 considerations published at -- of the original emergency 19 planning rule published on August 19th, 1980, at 45 20 Federal Register 55408, there is a X, and these are 21 subdivisions of the sta tament of considerations. There 22 is an explanation written in in English which is fairly 23 understandable. However, it is arguably inconsistent
() 24 with the wording of the regulation.
25 The statement of considera tions explanation is ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7363
() 1 quite close to the county's. Maybe I should briefly 2 ask, what is the staff's position? That looking at it 3 f rom the f acilities point of view and not the 4 governmental agency's point of view, is there a need for 5 the full-scale exercise every year?
6 MR. BLACK: Well, my reading of that 7 regulation was, no, and I went back and talked to the 8 technical staff about that, because there is some 9 confusion in my mind exactly what a full-scale exercise 10 was, and the way I finally came out on it was that there -
11 is -- a full-scale exercise can be segmented, but each 12 of those or one segment of the full-scale plan should be 13 done every year to assure that aach state and local 14 government in the plume exposure EPZ participate in that 15 one segment, and those segments can be rotated, and the 16 full plan should be done on a five-year basis. -
17 JUDGE BRENNER Put the government problem 18 aside for the moment. There is no easy way to get a 19 handle on the language. Let's try this. I am going to 20 ask the parties to give us further advice on the 20th 21 and the 24th, and these are the considerations. We vill 22 start with the proposition tha t that language is not 23 very clear. So, look at the statement of considerations
() 24 and see if that helps. But even if the sta tement of 25 considerations is clear, you may have the problem that l
I
()
l l
ALDERSON REPORTING COMPANY,INC, l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7364 the. writer of the statement of considerations stated
(]) 1 2 things contrary to the regulations, and then you have a 3 problem. Well, the statement of considerations says on 4 an annual basis all commercial nuclear power f acilities 5 will be required by NRC to exercise their plans. Then 6 you can argue, though, whether they are talking about a l 7 full-scale exercise annually or just some exercise 8 annually, and so you have doubt, even looking at just 9 that portion.
10 As I understand what you just said, Mr. Black, 11 a " full-scale exercise" would be required every year for 12 every facility. However, there may be some difference 13 as to what the necessary scope of this full-scale O 14 exercise would be,'and you are using full-scale exercise 15 as distinguished from the small-scale exercise which 16 would basically just test communication links.
17 MR. BLACK: That was my understanding, that I 18 think your suggestion that we go back and mull this over 19 and look at it a little bit more clearly is well taken, 20 and we should do that. It is just very unclear in my 21 mind.
22 JUDGE BRENNER: I couldn't read the darn 23 thing.
() 24 MR. SEDKY: I guess our reading of it is that 25 since a facility, really, the focus of it is that if you l
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7365
() 1 have got -- that the governmental authorities ought to 2 have the opportunity to participa te in one f ull-blown, 3 not partially full-blown, but full-blown exercise once a 4' year. Now, if you had five plants, that may mean you 5 only had to do one plant every five years, but because 6 the local authorities would be pa r ti cipa ting in the 7 exercises with respect to the.other plants, you would 8 basically assure, and I think the intent of this 9 regulation is to make sure that the governmental 10 authorities are participating ic a full-blown fashion 11 once every year.
12 Accordingly, it just doesn 't make sense to me 13 to read it the way Mr. Black would have it read, because 14 what that would mean is that as to certain drills, let's 15 say, a county, the county personnel would not be 16 functioning on those drills except once eve ry five 17 years, or you could have changeover in personnel anti 18 those kinds of problems, and learning curve problems,
_ s 19 and that would not meet the regula tory standard.
20 JUDGE BRENNERs Well, there are two things s 21 going on here, and this may assist a possible meeti,ny of
~ .
22 the minds on what remains for legal dispute if anything, s.
23 and what remains for a factual dispute if anything. On Y
() 24 the legal lispute, that may be moot, even though the's- s 25 regulation is very difficult to read, where you have aN s i
O ' -
i ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 c_
7366 situation with only one reactor within the cognizant
(]) 1 2 agency within the plume exposure pathway. You may have 3 to do it once per year.
4 However, your problem is, all right, one local 5 government, and then you have the once per year anyway.
6 Even though the language is difficult, you may be able 7 to get at the lowest common denominator as applied to 8 this factual situation. The state, of course, has more 9 than one reactor, but the local government entity which 10 would presumably be the county, does not, so that may 11 solve how often a full-scale exercise need occur, as far 12 as a legal proposition, and I don't know, but it may 13 come down to that. However, it may be a matter of
(
14 factual dispute as to what that full-scale exercise 15 might consist of. That is, LILCO and or the staff might 16 state, well, you can't test everything every time, and 17 our plans for how we would rotate things still meets the 18 requirement of an annual full-scale exercise, and then 19 you might want to focus on why it does not.
i 20 That would move it into the factual realm, so 21 I think there is room for further discussion. It may 22 need a better focusing at some point before the 23 litigation, perhaps hopefully by August 20th, as to why
() 24 you don't think what they plan to do is a full-scale l
25 annual exercise, if th ey are arguing yes, we are doing a l /'
()%
ALDERSON REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554-2345
7367 Q 1 full-scale annual exercise. If they are conceding they 2 are not doing a full-scale annual exercise, an argument 3 they don't have to, then we have got a legal problem 4 also, and we would appreciate more analysis of this 5 language.
6 If you have resolved the legal pa rt, don't 7 brief things unnecessarily. If you don't have a legal 8 dispute as to what is required in the circumstance, I 9 won't need the legal briefing, and you can tell us that 10 and we will deal with the factual contention.
11 12 13 14 15 16 17 18 19 20 21 22 23 O 24 25 O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
7368
() 1 MR. BLACKS- I don 't want to belabor this 2 point, notwithstanding the legal interpretation of these 3 confusing words. But just for the County's 4 informational sake, perhaps I should tell you exactly 5 how the Staff has interpreted this requirement and so 6 holds the Licensees to it.
7 But we do require the Licensees to conduct a 8 full-scale on-site exercise, including first 9 notification of the local authorities, on an annual to basis. The full-scale exercise relating to the whole 11 plant, offsite and onsite, must be done, including as 12 much of the onsite and offsite plans as reasonably 13 achieveable, every five yea rs. And for the annual 14 onsite full-scale exercise, we require the Licensee to 15 rotate its scenarios for the accident on an annual 16 basis.
17 So this is how we interpret this whole mess, 18 and whether that is a reasonable interpreta tion I don't 19 know at this point.
20 JUDGE BRENNER: I guess I didn't follow very 21 Well what you just said. If they're rotating the 12 scenario annually --
t 23 MR. BLACKS For onsite.
() 24 MR. CHRISTMAN: Judge, I may be able to help a 25 little bit.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
i l
7369 JUDGE BRENNER: Let me make one quick
(]) 1 2 comment. Mr. Black, you will have to deal with the 3 portion of that regula tion which arguably -- and I'm 4 certainly not ready to say anything definitive about ,
5 that lenguage, but arguably requires -- each local 6 government within the plume exposure pathway EPZ to 7 participate in at least one full-scale exercise per 8 year.
9 So see how you work on that one as to what you 10 just told re.
11 MR. CHRISTMANs Judge, my understanding, 12 subject to the usual qualifications that someone may 13 correct me later, is that the company planned to have a 14 full-scale exercise once a year. And the five years 15 comes in -- I suppose that you would have it, the first 16 year you might have it in the winter, the second year in 17 the summer, the third year in the spring, and the fourth 18 year in the fall. So that by the time five years have 19 gone around you would have tested all of the conditions 20 that might occ ur.
I 21 JUDGE BRENNERs Okay. If that in fact is the 1
i 22 case, then you may have no dispute or you may be in the 23 realm of just a f actual dispute as to what full-scale
() 24 is.
I 25 MR. CHRISTMAN: Quite possibly.
]
l ALDERSON REPORTING COMPANY,INC,
! 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7370 JUDGE BRENNER:
(]) 1 And since it is hard to have 2 an annual exercise in every season every year, if that 3 is the only element that is. changed you may have no O 4 dispute. But hopef ully you can get to ge th e r.
5 Mr. Black , I'm busy up here during this 6 h ea ring , but if the Staff has any influence with the 7 regulations that may be susceptible to clarification, 8 you might stick this one in the suggestion box if you 9 ever get to a point where you have nothing better to 10 do.
11 (Laughter.)
12 JUDGE BRENNER: EP18, contention EP18, 13 emergency classifica tion system and emergency action 14 levels. There is no objection and we were going to 15 admit it. But we will hold off until the 20th, with the 16 thought that the new information might yield greater 17 particulars.
18 (Pause.)
19 JUDGE BRENNER: If you happened to have the 20 new informa tion now, we would have admitted it now, 21 subject to se'eing what 9;" *nformation occurred between 22 now and litiga tion. But since the new information is 23 apparently here or in LILCO's view here, it would be
() 24 cleaner to just hold off and see if we can get to 25 another phase without having to admit it.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7371 EP19, no objection. We have no problem with
(]) 1
- 2. it in this phase, although some of the new information 3 might affect this, I don't know. Does LILCO believe 4 there is new information on this one? It is one of 5 these contentions where, instead of saying that this is 6 our particular problem, it is the argument, there is no 7 identification of such-and-such and no specification of 8 such-and-such.
9 And that is the type of thing, given the 10 wording, and it is only based on that wording that I say 11 this, that there might be a better focusing either on 12 new information or information that pre-existed, to 13 which you weren't focused for one reason or another. So 14 I think we will hold off on this one, too. We have no
~
15 fundamental problem with it. It is a matter that, where 16 there can be better specification let's get it before we 17 admit it.
18 Okay. EP20. We were going to run through it 19 in a little more detail than we're going to have time 20 for in terms of the consolidation aspect. We read your 21 pleading, Mr. Shapiro, and understand some of the l 22 distinctions you drew in your pleading. Not all of 23 them, but some of them. And we recognize that if you're
() 24 doing this yourself there is a rational organization
, 25 scheme.
1 O
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l 7372
() 1 However, in light of our comments that we made today and also with the further opportunity between now 2
3 and August 20th to benefit from whatever information 4 migh t be a vailable, and also f rom further discussions 5 with the County, we think that these contentions are 6 susceptible of a reorganization.
7 Incid en tally , the consolidation could effect a 8 whole new numbering system, which would be welcome in 9 the case of EP20.
10 MR. SHAPIR0s I agree with that.
11 JUDGE BRENNER: I understand why you did it 12 the way you did. It was easier to move over the old 13 NSC's, and we certainly wouldn't exclude a contention 14 because we don't like the number. But if we have the 15 opportunity to clean it up -- we have not been enamored 16 of the safety contention numbering system, which arrived 17 here before some of the members of the Board. So maybe 18 we can clean these up.
19 MR. SHAPIRO: Do you want a response to that, 20 Judge Brenner, or do you want to continue?
. 21 JUDGE BRENNER: Well, you said you agreed that 22 f urther work could go on.
I 23 MR. SHAPIRO: Yes, I have no objection to l
() 24 trying to do the best we could to consolida te it. And 25 without repeating the time constraints, I'm sure they ALDERSON REPORTING COMPANY,INC, ,
l 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
7373 will not occur again.
(]) 1 2 JUDGE BRENNER: We're not criticizing. We 3 understand the time constraint. So it is a matter of 4 going forward.
5 MR. SHAPIRos Exactly.
6 I do have a problem, though, with the Staff
! 7 objections, because -- the problem being that I don't 8 quite understand them, and perhaps this might be the 9 time to get some clarification from the Staff, at least to on the record. Tha t does not mean that I agree with a'11 11 of LILCO's objections, but at least I understand their 12 objections.
13 But the Staff objections state that they have 14 no objections to the contention if it's limited to 15 equipment, procedures and personnel concerned with these 16 two items, the dedicated commercial telephone lines and 17 the low-power UHF notification and communications 18 network.
19 I don't know whether that includes the various 20 specifications in EP20A and B which deal with equipment, 21 procedures and personnel.
22 MR. BLACK: I think I can cut you off very 23 quickly here. It was my purpose only to narrow down the
() 24 contention and to get rid of the excess verbiage that we 25 thought formed the basis of the contention. I don't
)
l t ALDERSON REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7374
() 1 think that in our simplistic rewriting of the contention 4 we left out any of the concerns that you might have .
3 expressed.
4 So our objection is not really an objection.
5 It is just that it is a rewording of the contention 6 which we think includes all of your concerns that you 7 noted. It is a broad contention that sometimes works 8 better than an overly simplified contention, I think.
9 JUDGE BRENNER: You weren't suggesting, were 10 you, Mr. Black, that the wording of your objection could 11 form a replacement contention, though, are you? Because 12 it doesn't tell the Board -- it doesn't give us enough 13 particulars.
14 If you apply that rationale to the 15 particulars, I could see where you could get there. But 16 you weren't talking about that, were you?
17 NR. BLACK: I think what we were concerned 18 about is that because there are so many subparts of the 19 contentions there might have been something that slipped 20 through the cracks that we didn't quite understand at 21 that point, that we didn't understand at that particular 22 time.
23 But I'think that the way that we ha ve worded
() 24 the contention is it covers all of the bases and is just 25 a statement on our behalf that we didn't want anything l
I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7375
() 1 to go unnoticed. But we think it covers everything.
2 MR. SHAPIRO: I take it what Mr. Black is 3 saying is that it is an objection filed for the record, 4 just to show that it was reviewed, but it doesn't cover 5 any substantive points.
6 JUDGE BRENNER: Let me cut through this. I'm 7 not sure I fully understand the objection, but part of 8 it is he filed it before we had a lot of the discussion 9 we have had today, and that kind of further work is 10 going to occur on consolidating the contention. And 11 remember, as to EP20, the EP20 series, I made the 12 comment tha t it may be internal consolidation would be 13 fruitful, not just consolidation with other O 14 contentions.
15 Let me make the comment, though, Mr. Shapiro, 16 that just the wording of the objection would not suffice 17 as a contention. Your work would have been very easy if 18 you could have filed just that.
19 MR. SHAPIRO: I understand that.
20 JUDGE BRENNER: There is a middle ground 21 between the wa y we're organized, the wa y we are 22 organized now, and the Staf f 's objection , and you can 23 give us the particulars and still avoid the
() 24 overlapping. And again, we talked about this.
25 HR. SHAPIRO: If I could just make another ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7376
() 1 point on it. As far as the NSC is concerned and insofar 2 as the LI1CO plan, whether the one that is bef ore us 3 today or the one that they filed the other day, we*are 4 limiting ourselves, in this area at least, only to 5 communication and notification. Those are the only 6 resources we have in this area and that is why perhaps 7 the contentions and the issues were so detailed and 8 perhaps set forth in rather f1'orld language at some 9 times.
10 JUDGE BRENNER: Well, we will'get to it in a 11 minute. But EP20C is arguably not so limited.
12 NR. SHAPIR0s I beg your pardon ?
13 JUDGE BRENNER: EP20C is not so arguably 14 ilmited to notification and communication. But --
15 ER. SHAPIRO: I'm awa re of that, and we 16 disagree with that. But we vill bear in mind what you 17 said today about trying to narrow them down and 18 consolidate them.
19 So as it stands, then, am I to understand that 20 EP20 is admitted subject to consolidation and 21 coordination with the other like similar objections?
22 JUDGE BRENNER: Not exactly. And maybe it is 23 just - I want to discuss some of the subparts. But in
() 24 terms of the general approach, maybe it is just my fear 25 and dislike of inertia, but the inertia is the other O
ALCERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
l 7377 1
() 1 vay.
2 It is not admitted until we see better 3 coordination and consolidation. And that might or 4 should help a particularization problem as to some of 5 the subparts also. There are some subparts that are not 6 that particular, and it may be that once you consolidate 7 it the particular of that with which you are 8 consolidating it will guide the way.
9 For example, EP20A(1) involving an allegation 10 of the inadequacy of the commercial telephone lines and 11 the UHF radio. We are inclined to agree with LILCO that 12 it is not as particularized as it could be, at least, 13 between now and August 20th. However, there are other O 14 subparts that deal with more particularided inadequacies 15 of the telaphone lines and the radio, and it may be that 16 you didn't mean anything else other than that, which is 17 already covered by the other subparts. I. don ' t kno w.
18 HR. SHAPIRO: I understand what you are 19 saying.
20 JUDGE BRENNER: Well, for example, looking at 21 -- and still in the frame of mind of possible guidelines 22 towards consolidation, if you look at EP20A(2). LILCO 23 believed tha t was redundant with 20A(3) and (4). I
() 24 would add, at least with those two, if you take a look 25 at A(1), and that is EP20A(1) and EP20A(5) and also O
ALDERSON REPORTING COMPANY,INC, 400 VIRGlNIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
e 7378
() 1 EP11, those are other areas that appear to substantially 2 overlap.
i 3 Now, I'm not precluding the f act that there 4 are some differences that you would want to maintain, 5 but this very process of coordination should serve to 6 highlight those differences rather than confuse us into-7 thinking that there are no real differences.
8 ER. SHAPIRO: Well, Judge Brenner, you do not 9 see a difference between a particularization or a 10 contention which speaks in tecas of a power overload or 11 possible sabotage and the contention or the 12 particularization which talks about a power outage 13 resulting from adverse weather conditions? I think 14 those are different possibilities to interf ering with 15 communications. There's no question of that.
16 JUDGE BRENNER: Now that you've focused me on 17 those two subparts, yes, I see the distinction. But in 18 trying to put all of these subparts together, there was 19 substantial overlsp. Not necessarily identity, but 20 substantial overlap.
2n And if you wanted to reword a contention that
! 22 the telephone system between LILCO and such-and-such 23 off site authorities will be inadequa te because of the l
i
() 24 following, A, wea th e r, B -- in other words, approach.it 25 from the point of view of that coordinated system --
(
f ALDERSON REPORTING COMPANY,INC,
(
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l l
7379 l
l 1
() 1 bear in mind our overall comment beyond consolidation 2 that we think the dispute over these communication
-)
(V 3 systems should be susceptible of some narrowing. I l 4 don't want to have to sit here and hear tes timony ad 5 infinitum about everything that could happen to 6 telephone lines and maybe we could assume tha t the-lines 7 von't work and then take a look at what the situation 8 would be, or maybe that they are not depending solely on 9 normal telaphone lines. I don 't kno w.
10 Let me address two other subparts or a few 11 other subparts, and you don 't have to respond now, but 12 by August 20th. Still with EP20A, subpart (7) involving 13 the hot line. The Board doesn't fully understand what 14 is involved. Now, maybe the parties do because they 15 have had all these discussions. I don't even know what 16 the hot line is.
17 So that could be better specified in addition 18 to consolida tion. Maybe the process, again, maybe the 19 process of consolidation will achieve that. I don 't 20 know.
21 Subpart (8) appears to be different than the 22 rest of EP20A. I generally look at A as an equipment 23 problem and B as a people problem, although I note now
() 24 that subpart (9) of A is also a people problem. But 25 you're talking about the effect of stress in subpart
/~'s V
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
7380
() 1 (8), which is certainly a severable subpart from 2 overloaded telephone lines and maybe should be in a
- 3 separate contention.
4 Once we see it provided separately, we will 5 determine whether or not it is admissible. Under the 6 Commission's decision after Three Mile Island, we will 7 first have to consider the effect of it and then whether 8 it's admissible. And we would hope that if such a 9 separate contention is propounded, there would be to included some recognition, not necessarily in the body 11 of the contention, but in supporting argument in the 12 case of this one subpart of why it should be admitted in 13 light of the Commission's decision implementing the 14 court's decision in Three Mile Island. And then we will 15 entertain argument to the contrary.
~
16 And maybe that situation is inapposite to this 17 one. I don't know. Arguably, you're talking about a 18 different source of stress. But we want to hear about 19 it.
20 MR. SHAPIRO: That's right.
21 JUDGE BRENNER: And that very process might 22 make clear what sort of stress you're talking about 23 which, if admissible, would help us focus the case O 24 better.
25 (Pause.)
O ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7381
() 1 EP20B(1) is somewhat nonpa rticula rized, as 2 alleged by LILCO. However, like A(1) it may be just 3 your introductory subpart and many other subparts that 4 deal with similar subjects. And here again, maybe the 5 process of consolidation will solve the 6 particularization problem also.
7 Still staying with B, the Board didn't,very 8 well understand the particulars of what is involved with 9 subpart (6) and subpart (7). We don 't see th em to overlapping with other subparts. That is why I indicate 11 those now.
12 Now, maybe the parties will understand it on 13 the basis of discussion, but if you can give us some P
O 14 further words as to what you mean by those subparts.
15 And again, I highlighted those because it may be that 16 those would not be consolidated with other subparts and 17 we would still therefore have the particularization 18 problem.
19 We 're no t looking for any magic, just a simple 20 rendition of what it is you want to litigate.
21 MR. SHAPIRO: We understand tha t.
22 JUDGE BRENNER: Okay.
23 EP20C involves assistance resources needed on
() 24 site.. And I made the comment a moment ago that some of 25 that appears to involve more than just notification and O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7382
() 1 communication. As I correct, Mr. Shapiro?
2 MB. SHAPIRO: Some of it does involve more, 3 but it also involves also the mechanism whereby the need 4 for securing transportation, securing medical 5 assistance, will be implemented and will be met, rather 6 than implemented. The need, for example, to be sure 7 medical personnel is notified is obviously a 8 communications problem. The need for correlating --
9 number (4), correlating medical assistance with 10 different types of emergencies, different types of 11 emergency classification which may well be met as a 12 result of the new plant, again is a communication 13 problem.
14 I take to heart what the Board -- what the 15 Judge and the Board has said about the contents of 16 messages. Obvicusly, that is a matter that can be 17 worked out in view of the discussions today.
18 JUDGE BRENNER: Yes. And speaking of that 19 subpart, hopefully it would be worked out. In addition 20 to that, it certainly is very similar to the LILCO --
21 EP3 arguably is closer to a subpart of EP6.
22 MR. SHAPIRO: I think that on balance and 23 after hearing the colloquy today, that probably NSC3 can
() 24 well be worked out together with the County 's objections 25 on medical assistance and tha t whole area. It probably O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7383
() 1 can be melded in, give or take a contention here or !
2 there. .
"T 3 JUDGE BRENNERs I think af ter you work it in (V
4 you may find you had one or two additional points than 5 they had.
6 MR. SHAPIRO: I think so, but we certainly 7 will look at that.
8 JUDGE BRENNER: So you 're talking about taking 9 a closer look at EP3. I suggest also take a look at EP6 10 for some portions of it, and in addition whether or not 11 we have to litigate some of these parts at all, as we 12 commented in other contentions.
13 Okay. EP21, recovery and re-entry. That O 14 con tention looked admissible to us at this' phase. As we 15 understand the Staff's objection -- and I will give the 16 Staff an opportunity to indicate whether we understand 17 the objection correctly or not -- it seems to be making 18 the point that in the Staff's view, under NUREG-0654 you l
19 don 't need a lot of detail in th e recovery and re-entry l
20 plans in advance.
21 Is that the point of citing NUREG-0654?
22 MR. BLACK: That is correct.
23 JUDGE BRENNER. We think that aspect of it 24 could go to the permits, and when we see the argument I 25 and the proof of what needs to be involved -- and we O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W WASHINGTON, D.C. 20024 (202) 554-2345
-7384 I
() 1 will consider what is being done in the planning, the 2 evidence to the contrary, and what other parties think 1
3 needs be done in view of the evidence, of course, and in 4 light of our view of the regulation and what is 5 required.
6 So we would admit that in this phase. It take 7 it the main problem, Mr. La tham -- and this is a SOC 8 contention -- is that they haven't told you very much, 9 if anything, at this point?
10 MR. LATHAMs That is correct, Judge Brenner.
11 I think we looked at the four pages in section 9 of 12 LILCO's emergency plan, which I read again, the second 13 revision which we received last week, and I didn't see 0 14 any significant changes except with regard to some 15 nomenclature, one of the individuals. I don't know that 16 it was a ma terial change, that the recovery manager is 17 now called the response manager. I don 't know whether 18 his duties or her duties have changed a whole lot.
19 But in some of the backup information that we 20 received today concerning the emergency plan 21 implementing procedures, as well as the emergency plan 22 itself, there are references to subsequent procedures 23 which are going to be developed. And it would seem to l () 24 us that at the present time th e re really isn't much in 25 the way of procedures now. I don't know, and I will ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7385 )
l i
() 1 discuss with LILCO subseqent to today's hearing whether 2 those procedures will be made available, and that may go 3 a long way towards narrowing the concerns.
4 JUDGE BRENNERs All right. If by -- in the 5 August 20th filing, I think a reference to the plan and 6 the implementing procedures migh t be helpful. You might 7 vant to tell us a little more as to in terms of 8 characterizing what LILCO is planning to do, and that
. 9 will help set up the context of what you don't like 10 about it.
11 And I'm not suggesting you write their 12 testimony, but just a brief characterization of SOC's 13 view of what LILCO is doing and then a lead-in into what 14 you therefore still don't like about it,' if anything.
15 MR. LATHAM: Certainly.
16 JUDGE BRENNER: EP22 involves the contention 17 which is the follow-up to the earlier stipulation 18 regarding the interim safety parameter display system.
19 There is no objection, but in the Board 's view subpart 20 F, involving human factors, is susceptible of better i
21 particularization.
22 Human factors is a very broad subject, even 23 when you know what equipment you are talking about. So
() 24 we would ask th a t that subpart at least be further 25 particularized by August 20th.
l ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7386
() 1 JUDGE MORRIS 4 On this one, also, there are 2 six subparts and then there is a list of references, but 3 no guidance as to which references apply to which of 4 these six subparts. So if some indication of particular 5 reference could be made.
6 MR. SEDKYa Very well, Judge. We will move up 7 the citations to follow each of the subparts, A, B, C, 8 and so forth.
9 JUDGE BRENNER: Contention EP23 involves the 10 permanent safety parameter display system. Now, maybe 11 LILCO knows what is involved, but we agree with the 12 Sta ff 's obj ection , at least as to the specificity. And 13 I can't tell about basis yet, because I don 't know 14 enough about specificity.
15 There is much room for improvement in terms of 16 the County being able to tell us by August 20th what it 17 is.
18 MR. SEDKY: Unless the status of this has 19 changed recently, our problem here is we just don't 20 know. We have no knowledge, and we will talk wi th the 21 LILCO attorneys on this topic and find out where it 22 staQds and get a better description, and then if we 23 still have a problem we.will be more specific about it.
() 24 And we will do that by the 20th.
25 HR. CHRISTMANs Judge Brenner, for what it's D
O I
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7387
() I worth, we really don 't know . We have the same problem 2 with the specificity, and I guess we support the Staff's 3 objection on that ground. We have turned over a good
)
4 deal of information, I think, on SPDS today in response 5 to a second request for documents, and that may very 6 vell help to help the County specify better what.it 7 means.
8 And it may be tha t af ter we see what they mean 9 we may have objections. But it seems to me we can leave 10 that open.
11 JUDGE BRENNER: Okay. Let's see where we are 12 on August 20th. It looks like we're going to have to 13 have another one of these sessions after that filing, or O 14 we might have to. 'We will try to avoid it.
15 We are going to have the same comment for the 16 next several contentions as we had on contention EP23.
17 That is -- well, let me hold off. We have the same l 18 comment with respect to contention EP24. It is just too 19 broad and we agree with the Staff's objection.
20 MR. SEDKY: That was the same problem, Your j C1 Honor. I think, as we indicated in our brief, that was 22 just a list of EPIP's in the earlier plan. And Mr.
23 McM u rra y , I believe, or somebody checked to see how far
() 24 along each of those had been completed , and at various 25 stages various of them had been completed.
O ALDERSON REPORTING COMPANY,INC, f
400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
7388
() 1 And we just wanted to preserve our rights on 2 that question. I gather that now they're all there and 3 we will take a look at them.
4 JUDGE BRENNER As I indicated generally 5 earlier, our comment that we want more specificity is 6 certainly not necessarily -- well, it is not a 7 criticism, because we don't know. And we're not saying 8 that you should have told us more at the time of this 9 filing. We are not deciding that one way or the other.
10 Tell us more next time or tell us that you've 11 looked and there isn't more, one or the other.
12 HR. SEDKYs Okay.
13 (Pause.)
O 14 JUDGE BRENNER: Well, EP25. There was no 15 objection, but the Board has a problem understanding 16 what would be litigated under this. So we would make 17 the same comment with respect to your contention labeled 18 " accident assessment accident." I understand you might 19 have had an information gap problem at the time you 20 drafted it.
21 MR. SEDKY That's what it was.
22 JUDGE BRENNERa Okay. So the same comment 23 again would apply to this one, by August 20th.
() 24 MR. LATHAM: Judge Brenner, if I ma y, in the 25 last couple of contentions, I don't believe you have O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7389
() 1 been giving us guidance in terms of whether or not, if 2 particula rized , these would be first phase or second 3 phase issues. Maybe that would be helpful.
4 JUDGE BRENNER I'm sorry if I didn't do 5 that. First phase. And if I say August 20 th, and maybe 6 I forgot to say that also, that.would be for the first 7 phase. We certainly wouldn 't hold you to that ,ight t a 8 time period for the second phase.
9 Again subject to looking at the evidence and 10 saying we ion't want to have to litigate this twice , so 11 we will wait, the same comment as to contention EP26.
12 We would expect to see specification as to what you want 13 to litigate by August 20th, and again consideration as 14 to whether all elements of what you want to litigate has 15 to be li tiga ted , in terms of whether agreement can be 18 reached.
17 But it would be appropriate for the first 18 phase. Maybe once we get the specification, we will see 19 that some pa rts specified should be for the next phase.
20 But at this point we certainly can 't make that 21 distinction.
22 Okay. Contention EP27. We should look at the 23 reworded contention and the County's response, I
() 24 imagine; is that correct?
25 MR. SEDKY: Yes. We proposed what is in A
LJ ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7390
() 1 effect an amendment to that language for the Board and 2 the parties' consideration.
3 JUDGE BRENNER: Let me turn to LILCO. LILCO, 4 among other things, cited our earlier rulings with 5 respect to, I guess they were, SOC contentions 1 and 2.
6 This is a little bit of a different contention. They're 7 not talking about the PRA for the size of the emergency 8 planning zone; they're talking about the PRA in order to 9 meet the requirements of 10 CFR 50.47(b)(9) and (10),
10 involving the assessment of actual and potential doses 11 and consequences as an accident is occurring.
12 And the County also makes the point, LILCO 13 said this is what they are doing. So what do you say in 14 response to those two things?
15 MR. CHRISTMAN We will still have to object 16 to this one. We said exactly what the County says we 17 said, because it is true. But I think our position will l
18 be that this PRA is not used in the development of the 19 plan, that we develop a plan in an entirely dif feren t 20 manner and measure it against the requirements of the 21 regulations.
22 It is true, I take it, tha t the company will 23 use this PRA to assess certain aspects of emergency
() 24 planning, and we don't believe that it should be 25 litigated, that it should be an issue here at all.
O l
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7391 JUDGE BRENNER:
(]) 1 Is this one and the same PRA 2 which we have been talking about in the context of 3 County 7B?
4 HR. CHRISTMAN Yes. We are talking about the 5 consequence part of that now, I think.
6 (Pause.)
7 JUDGE BRENNER: You say you don't use it in 8 developing the plan, and so I don't understand what 9 LILCO proposes to do with it in the context of emergency 10 planning.
11 HR. CHRISTMANs Well, my understanding may be 12 no better than yours, but I believe they, having 13 developed their emergency plan, they may after the fact 14 use this PRA to see how they can mak e the situation even 15 better, to improve the plan and therefore make things 16 more conservative than they were.
17 But the plan itself is developed altogether 18 through a different process. This is something they are 19 sort of doing on their own extra, which somewhere down 20 the line may be used for just the purpose succested in 21 our testimony.
22 JUDGE BRENNER: Let me ask one more question, 23 because I'm trying to get a handle on what LILCO
() 24 proposes to do, and then we will give you time, Mr.
25 Latham.
l ALDERSON REPORTING COMPANY,INC, l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
7392
() 1 Are you telling me, Mr. Ch ristman , that LILCO 2 wouldn 't use the PR A to , in the words of 50.47(b)(9),
3 " assess and" -- well, I will paraphrase -- assess and 4 monitor actual or potential offsite consequences of a 5 radiological emergency condition?
6 .
MR. CHRISTMANs You a re getting beyond my 7 knowledge of the 7B testimony and what the matter is 8 being used for. But I can cer tainly ge't a little better 9 information for you on that.
10 JUDGE BRENNER I don 't know the answer to 11 that from the 7B testimony, either. So that wasn't a 12 rhetorical question.
13 Okay, Mr. Latham?
O 14 MR. LATHAM: I was just going to say, Judge 15 Brenner, that I have the same problem that you do in 16 trying to figure out what -- how it is both being used 17 and not being used at the same time. I was going to ask ,
18 if, for example, in reviewing the completed plan that 19 may have been independently developed against the j 20 consequence portion of the PRA, that LILCO then 21 determined tha t some aspect of the plan was not 22 adequate, would then they ignore the changes suggested 23 or would they make the changes?
() 24 It seems to me that if they're going to use it 25 to improve it, I would hope -- it would seer to me that O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AiE., S.W., WASHINGTON, D.C. 20024 (202' 554-2345
'f t,
,, 7393 I
\
() 1 they are in fact applying the plan to their emedgency '
2 plan -- the PRA, I'm sorry, to the emergency plan.
3 JUDGE BRENNER: Staff? s ., 7 4 MR. BLACK: We would reiterate our same x
5 objection. Even in light of the revision of the -
6 contention, in its most simplest terms the Staff 7
' ~
7 well, le t me back up. s s 8 This con tention a sserts basically that a PRA'. .
-i 9 should be developed to look at a range of consequences 10 of a severe accident --
y -
11 JUDGE BRENNER: Let me interrupt, just for 12 this reason, because it might -- I don 't know if it's 13 going to affect a lot of what you're going to say. I s -
14 think they are a little more sophisticated tha n tha t . in,. .
15 the contention. _
16 They are saying, without regard to.whether or 17 not one would have to be developed, you have got y And 18 you apparently plan to use it, and so therefore wei 19 should deal with that in the litigation.
20 MR. BLACKS I didn't understand tha t.' I just 21 assumed that they said thatoneshouldbedevelopedhor' 22 looking at those assessments, in accident assessments. s 23 And our position is quite simply, one is not ' required,
()
24 one is not used, and we assume an accident, a severe
~
- s. s '
, 25 accident, does occur and we develop our emergency s
(
l I
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 23024 (202) 554-2345
s
~
7394 I
~
l planning on that basis.
-( ) 1 2 Using the PRA to ge t u p to a severe accident 3 is simply not required nor used.
4 MR. SEDKY By their own admission, or by 5 LIlCO's own admission, it is being used. There is a
~
6 clearcut regulatory requirement that such a system, 7 whatever the method or system is -- we don't say that u
8 they have to do a PRA, but whatever method or system 9 that they have for assessment potential of f site 10 consequences of a radiological emergency is a
~ 11 requirement of the regulation, and that they have such 12 an animal that they call the PR A and consequence s
'13 analysis.
A ~
\/ ,
14 Parts of the PRA, a PRA analysis, have a 15 direct impact on what you would plan for; in other 16 words, the dosage, the timing, the severity ; and then
[.- 17 would tell you presumably what it is you're going to be l 18 planning for. And we think that that is a matter of
~
\
19 fair litigatien. They either did it right or they C 20 didn't do it right, and tha t's it. ,
l l 21 MR. REIS: Mr . Ch airman , there 's a very l
l 22 important policy reason not to litiga te PRA in this 23 context when it's not required by th e regulation. If i.
() 24 They have a proper regulatory base, you will discourage 25 all utilities from trying to advance the safety of s
s - ALDERSON REPORTING COMPANY,INC,
' ! 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 y-,e
7395
() 1 nuclear plants. There will be a real positive 2 motivation for them not to go to new technologies.
3 And I think this has to be considered in 4 determining whether you're going to litigate a 5 technology where there is another basis for the 6 regulation and when there is another basis for the 7 control. Just the fact that the utility volunteered to 8 go beyond the regula tions and do something, to look at 9 something that might be good for the future, is not a to reason to drag it into litigation. You will certainly 11 discourage other utilities, as well as this utility, 12 from going forward.
13 JUDGE BRENNER: . Well, you say there is another n
14 basis. Arguably, we don't know now at this stage 15 whether LILCO plans to follow another basis, even if 16 arguendo there is another basis. For all I know, the 17 PRA is the only basis they plan to follow, at least at
! 18 this stage in advance of any evidence on it.
l 19 MR. REIS: I think the basis is in the NUREG, 20 and LILCO has said they are following the NUREG and tha t 21 is the basis they have. I don't think that -- I think, l
1 22 just as we have heard here today, that they are looking 23 at it as an additional matter, indicates ve ry definitely
() 24 that they have a different basis to figure out the 25 radiological consequences than the one that is set out O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7396
() 1 in Staff documents and guidance that has been used 2 before.
3 And to say that you are going to suddenly 4 litigate very difficult matters, as we have seen in the 5 7B litigation, just because the utility is voluntarily 6 going somewhere with something is very counterproductive 7 to safety. Now, I may be wrong. If this is the only 8 basis that LILCO has to figure out these consequences, 9 tha t's a dif ferent matter. But I don't think that's the 10 case at all.
11 MR. CHRISTMAN: You're quite right, that's not 12 the case at all. I think we're talking apples and 13 oranges here. I just think this PRA is not used, is not 14 designed to provide the basis for the accident 15 assessment and dose assessment models, and is not used 16 to ensure the accuracy of the assessment models.
17 It is something extra in addition to the 18 emergency plan development process that is done by the 19 company, and simply really shouldn't be litigated here.
20 JUDGE BRENNER: One possible approach the I 21 Board considered on this contention -- and some of the 22 remarks have actually reinforced that possible approach, 23 and we want to think about this one, and you will know
() 24 in our written decision. One possible a pproach is a 25 bifurcated approach on this one.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7397
() 1 We had discussed it in the context of 7B, i 2 which is distinguishable. But the thought arose there, l
3 although the applicability would be different, under the i 4 emergency planning you need to have a preplanning scheme 5 in place such that, given the releases you are getting 6 at the time and other symptoms of the plant at the time 7 of initial indications of possible emergency situations, 8 you need to have the basis for the utility to be able to 9 know whether -- what emergency level to decla re a t that 10 time.
11 And the decision depends not solely on the 12 releases at the moment, but an assessment as to whether 13 those are the highest releases you've seen and now it's
\'- '
14 over or, the other end of the spectrum, that these are 15 just the beginning of a rapidly escalating event. We 16 could litigate LILCO's ability to, using the words of 17 the regulation, " assess and monitor the actual and 18 potential offsite consequences," and thereby their 19 ability to properly and timely make correct recommended 20 protective actions to the authorities centered around 21 the approach that LILCO would plan to use.
22 And it may be that in an emergency planning 23 context -- and I don't know until we see the proof, but
() 24 it may be that in an emergency planning context it wo uld 25 be a cutback on conservatism to use a PRA. That is, you O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE S.W., WASHINGTC,N, D.C. 20024 (202) 554 2345
7398
() 1 don't want to rely on the probability of something 2 happening. You may want to assume that the next step is 3 going to happen in terms of emergency levels. That may 4 be somewhat distinguishable than what goes into design 5 considerations. That is, you may want to be assuming 6 the worst at all stages of the scenario, in which case a 7 PRA vculd not be appropriate.
8 However, we don't know whether the planned use 9 of the PRA by LILCO might be inconsistent with that 10 approach. So under this bifurcated approach we would 11 litigate what LILCO plans to do based on other than the 12 PRA, reach a decision on the adequacy or inadequacy or 13 . borderline adequacy of that, and, depending upon that 14 decision, decide whether to go further into the use of 15 the PRA.
16 However, even under a bifurcated approach we 17 aight at the first stage want at least a better 18 explication of what LILCO plans to do with the PRA in 19 the context of emergency planning, even though we 20 wouldn't litigate that aspect at that point, but just so 21 tha t we understand the context of the possible first 22 part of the approach.
23 .MR. CHRISTMAN: May I ask you quickly for a
() 24 clarification? Do I understand, then, that if we 25 litigate it the way LILCO has actually done the dose l
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
- - . . ~ . -
7399
() 1 assessment models and that that proved to be adequate 2 against the regula tions, then we would not need to go 3 into a diff erent methodology at all?
4 JUDGE BRENNER . I don't want to agree with 5 your wording, because you restricted-it to the way that 6 LILCO would do the dose assessment models, and speaking 7 for myself I'm not sure that that is all that is 8 involved in being able to ascertain the potential 9 consequences.
10 1 think you need to show -- and I may be 11 wrong, but I tnink you need to show your knowledge of 12 the condition and potential condition of the reactor, 13 and not just the dose consequence model given the O 14 releases at the moment.
15 MR. CHRISTMANs And I think we can do that 16 without the PBA at all, and that would seem to me to be 17 the appropriate issue to litigate.
18 MR. REISs Mr. Chairman, I think from what we 19 have said here the contention has to be completely 20 redrafted. It isn't now centered that PRA is not done 21 and it is not a proper PRA. If we have a totally new 22 contention -- I think we have to have a new contention, 23 and that is that there is no reasonable basis to model
() 24 the accident and tell the proper consequences and the 25 stages of the accident.
O ALDERSON REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGT' O N, D.C. 20024 (202) 554 2345
7400
() 1 I haven't written the contention and I don't 2 think the Board wants to write the contention for these 3 kno wledgeable Intervenors. Pit I think what we are 4 talking about is s different contention. As we read 5 this contention, it did deal with PRA.
6 In our guidance to licensees and in tha 7 regulations, there are indications of other ways to do 8 this. We certainly know there are other ways, because 9 PRA's have been done at other plants. And that might be 10 a different contention. I don't think we have to go 11 into PRA or : lk about PRA at all. There is a proper 12 way.
13 Now, if it comes out that there is not a 14 proper way, then they don't get a license. If LILCO 15 thinks the proper way is the PRA and that is their 16 evidence, that's fine. But I don't think we have to 17 even talk about it as a backup at all. If an Applicant 18 wants to do research in heavy water reactors, for I 19 instance, that doesn't mean we litigate it vis a vis 20 whether a light water reactor is better in that 21 proceeding.
22 Just becaose an Applicant is involved in 23 research or is doing something else doesn't bring it
() 24 into the licensing process, unless it is necessary for 25 the licensing of the plant. And here we're cetting I
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7401
() 1 involved in something again that -- or something that is 2 not necessary for the licensing of the plant. It may 3 be, but it depends upon whether it is the basis upon 4 which LILCO has submitted its application and the Staff 5 review was formulated.
6 We don't have to go into everything, every 7 research project, and everything that a licensee is 8 looking at. And I think we 're going to get bogged down 9 into issues that are not necessary for licensing.
10 I agree that there can be issues in looking at 11 proper acciden t modeling, what is likely to happen if 12 certain systems break down and what the doses are, and 13 in that sense, yes. But to specify the methodology and 14 say, we're going to look at all me thodologies, 15 confirmatory, whether they are needed or not, is simply 16 not -- should not be within the scope of the 17 proceeding.
18 JUDGE BRENNER: Well, I think we understand 19 the arguments and we will consider them. Let me 20 suggest, Mr. Eeis, that your reference to abstract 21 research such as heavy water reactor may not be a 22 perfect analogy with the situation involved here. I 23 think there is, after all, some arguable connection to
() 24 this reactor.
25 JUDGE MORRIS 4 Let me just express some
(
l ALDERSON REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 t ._
_ . . =_- _
7402
() 1 thoughts for your consideration in attempting to work 2 this out. And I should say, I haven't discussed this S 3 with the other Board members, so this is not a Board
{J 4 suggestion; it is my own:
5 That you consider the PRA as a prediction of 6 risk at whatever stage you vich to terminate it, whether 7 it's the risk of core melt situation or an offsite 8 consequence, based on certainly assumptions and 9 methodologies; and in contrast to that, think of the 10 accident assessment and dose assessment models as tools 11 to use, together with measurements or observations at 12 the time of a real incident, to decide what actions are 13 necessary.
14 With those two different concepts, perhaps a 15 contrast can be made in reference to the requirements 16 for emergency planning.
17 JUDGE BRENNERs Okay. On this contention, we 18 may work it out some way for you, including the i
19 possibility of redrafting the contention. But we will 20 not achieve that until our written order, which at best l
i 21 will be the beginning of next week.
l 22 With that in mind, if the parties want to 23 shortcut that -- snd we 're not going to wait for you, l
() 24 but if you want to shortcut that -- and come up with a 25 proposal that takes account of some of what I said and
()
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7403
() 1 some of what Judge Morris said and propose another 2 contention that meets that, without prejudice to the gg 3 County having proffered the initially worded contention V
4 -- that is, if there is a proposed other contention it 5 wouldn 't be considered a withdrawal of the first 6 contention. You would still have your objection 7 preserved that we should have admitted the contention as 8 worded in your response.
9 If you can get to us by Thursday, we will 10 still be up here. That would be timely on tha t, so we 11 could consider it while we are all together.
12 We may decide to ask you to do that in our 13 order in any event.- But we may decide to try to go
( 14 ahead.
15 All right, let's try to finish at least the 16 motion to compel. It would be helpful to us, if the 17 parties have copies available, to bind in LILCO's July 18 9, 1982, motion to compel and the County's opposition to 19 LILCO's motion to compel, and the opposition is dated l 20 July 19 th , and thanks to the County's rapid service 21 through telecopier, we understand we in fact did receive 22 it on the 19 th .
23 It is too late for today. I would like it in
() 24 the transcript in any event, because it helps me later.
25 Maybe we can put it in first thing tomorrow morning.
()
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
7*J4
() 1 We have gone through the arguments quite 2- carefully and we have looked at everybody's transcript 3 references to what we said, and we have looked at our 4 prehearing conference order of April 20th, and we can 5 draw the argument either way. If we were a third party 6 interpreting what we said, we agree, we were less than 7 clear, and we apologize.
8 We can draw the argument either way as to 9 whe ther we meant all documents or not. We can tell you 10 that we in fact meant discovery of all existing 11 documents, and that is what we had in mind and that is 12 what we continue to have in mind. That is to be 1'3 distinguished from other forms of discovery. We did not O 14 open up other formal forms of discovery, that is formal 15 interrogatories, formal requests for admissions, 16 depositions on the second phase.
17 Ho we ve r , we did intend all other forms of 18 discovery to continue, so that when we get closer to the 19 next phase we do not need a large discovery period.
20 There has been some background in this proceeding, Mr.
21 Sedky, where we were not happy when we got up to the 22 beginning of the safety hearing as to the lack of 23 discovery leading up to it. And I am not referencing
() 24 that for any analogy to present unhappiness; I'm 25 referencing it as to a reason as to why we intend -
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S 'N., WASHINGTON. D.C. 20024 (202) 554 2345
l 7405
() 1 discovery to continue to proceed to the f ullest extent 2 possible, and that includes all existing documents.
3 Your points as to the discovery rules 4 contemplating contentions being admitted first may be 5 technically correct, but are not accurate in terms of 6 what we have been doing here. We have been requiring 7 discovery before the contentions on emergency planning, 8 and in fact one reason' we did it is we considered it a 9 benefit to the County and other Intervenors, as well as 10 to the proceeding -- we weren't wholly unselfish -- so 11 that we could get better focused contentions in the 12 first instance, as opposed to the process I alluded to 13 -- that seems like I long time ago -- at th e beginning O 14 of the day, of getting contentions that are marginally 15 admissible and then having a lengthy period to better 16 focus them.
17 HR. SEDKY Our fundamental concern, Judge 18 Brenner, isn't a technical question of scope and why 19 should we have to do this for you guys, that is outside 20 the orde'r, although we stand by that argument. But 21 basically --
22 JUDGE BRENNER: I'm glad to hear that, because 23 I thought there was some of that in some of the papers.
( 24 MR. SEDKY: Basically, although that is a 25 le2a1 basis for our resistance, our resistance is a O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
7406 practical one at this time, particularly insof ar as it
(]) 1 2 would require the County, for example, to go beyond its 3 own border, so to speak, delve into the files of its g)
\_
4 consultants, start to furnish, produce documents 5 piecemeal from the consultants to the Applicant and the 6 Staff.
7 And we just thought that that would be such a 8 disruptive process that it would delay the County in its 9 emergency planning efforts, and it would delay the 10 consultants in their preparation for this litigation.
11 We have no hesitation and will volunteer to 12 provide all the County planning documents as they are 13 developed, such as the survey and accident assessment, O- 14 as I indicated earlier, all of these things, that as 15 they are being developed and in the County's hands, we 16 will be more than willing to furnish it to the parties.
17 That is basically the point.
18 I think perhaps the dispute got blown out of
~
19 proportion by maybe our misinterpreting what it was they 20 were looking for, and perhaps they were just 21 overreaching a little bit. But we would like to resolve 22 the practical problem and not stand,up on the legal 23 niceties.
() 24 JUDGE BRENNER. Well, we appreciate hearing 25 that. We try to treat the parties equally. I'm sure O
l ALDERSON REPORTING COMPANY, INC, 400 YP. 31NIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7407 the parties disagree that we do that at any given
(]) 1 2 moment, or maybe every given moment.
s 3 But I can tell you -- and again, this is by b 4 way of analogy and not by way of any involvement by you 5 -- that leading in to the safety phase, even as to very 6 broad requests for extensive numbers of documents, and 7 which requests could be considered to be late requests, 8 particularly for QA-related documents, although not 9 exclusively, I think it is fair to say we leaned very 10 hard in forcing LILCO, at reasonably great burden to 11 LILCO, to make available thousands and thousands of 12 documents to the County during a time phase when 13 everybody was working very hard to do other work.
14 And now the shoe is on the other foot, and we 15 are not going to consider burdensome this, in light of 18 that background. And I just think the documents could 17 be and should be turned over very promptly. I don't 18 know how better to define "very promptly." I am willing I
19 to hear you on that point.
i 20 MR. SEDKY: What I really -- again, without 21 setting aside all of the legal arguments that one might l 22 make, what I'm trying to find out -- and perhaps LILCO i
23 could illuminate for us -- is Mr. Findleson is out in
() 24 San Jose and he's working out his models and he's trying 25 to get information plugged in in the computer tapes; are O
ALDERSoN PEPoRTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 L
7408 we supposed to stop him and copy that computer tape?
(]) 1 2 Because that is a document, arguably, in the custody and 3 control of the County.
4 We don't think that is how they have 5 interpreted our document request. We have often asked 6 for documents and they're saying, it is in preparation.
7 And fine, it is in preparation; we wait until it is 8 complete, and when it is complete it is furnished.
9 We are really looking f or that kind of 10 protection, and not the fact that it was going to be 11 burdensome for somebody in the County's office to go 12 through some files.
13 JUDGE BRENNER: Okay, that helps. That kind
( 14 of in-preparation is different than a claim of 15 in-preparation when something may be later amended. And 16 you're not talking about that?
17 MR. SEDKY No, we are not talking about 18 that. I mean, perhaps we have reso3ved this problem, if 19 what you are looking for are the segments of the County 20 emergency planning efforts as they are being assembled 21 and finalized. We are more than willing to produce that
- 22 for you, and the survey will be available tomorrow 23 morning.
() 24 JUDGE BRENNER: Well, I think you just 25 narrowed -- the last description of your ca tegory is a l
l i ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
7409
() 1 lot narrower than "all existing documents that fit the 2 request," as I read the request. And we are ordering 3 that the requests are valid to the extent the documents 4 exist. Of course, if the documents don't exist ther 5 cannot be turned over.
6 Now, the computer run may or may not exist, 7 depending upon --
8 MR. SEDKYa Well, whose custody and control is 9 it? I mean, that's one of the' problems we have. Who 10- are we responsible for?
11 JUDGE BRENNER: You're responsible for your 12 consultants, just as we held LILCO very strongly 13 responsible for their subcontractors when it was time O 14 for LILCO to assemble all of the documents.
15 MR. SEDKY. So the answer is, the computer 16 tapes on which the social survey was based, and Dr. Cole 17 may have a problem here with proprietary information.
18 We will ask him to produce it, but that will stop the 19 County's work.
20 JUDGE BR ENNER s On areas that you have 21 questions, such as the computer tape which you just 22 identified, why don't you discuss it with LILCO and see 23 if reasonable arrangements can be worked out to have A)
(_ 14 things looked at. I don't know that the tape itself, as 25 distinguished from a printout, should be discoverable.
O ALDERSON REPORTING COMPANY,INC, 400 V!RGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
I 7410
() 1 And it depends on what exists on the tape, but it sounds 2 to me like it exists f rom your description.
3 MR. SEDKY I'm told there is a computer tape O 4 that the sociologists are now working with.
5 JUDGE BRENNER: Make everything available that '
6 reasonably can be made available, promptly. Then have a 7 listing of that which you think maybe it would not make 8 sense to make available now for one reason or another, 9 or for other reasons you don't have a problem on. I'm 10 not talking about legal objections. We are past that, 11 as you indicated.
12 I'm talking about that the tape migh t be out 13 in California, do you really need the tape, and would s
14 something else suffice. Depending on the form of the 15 tape, it might or might not be useful to anybody. And 16 at least have an identification of those documents, 17 again not by your summary description, but going down 18 the categories of the request as made.
19 MR. SEDKY We would also like some guidance 20 on the question of all the non-nuclear planning 21 ma terials that they have asked for.
22 JUDGE BRENNER: We think they are relevant in 23 che discovery phase, because they could lead to useable
() 24 information. And we were similarly broad when the 25 County made its request, in other areas admittedly.
1 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 2W .4 (202) 554-2345
7411
() 1 Well, we considered that and we can see how it might be 2 pertinent to the efficacy of the emergency plan.
3 MR. SEDKY Conceivably, an outfit like 4 CRC-Voorhees, which is a consulting firm , they have done 5 tens if not hundreds of emergency plans, and have 6 volumes and warehouses full of information pertaining to 7 those plans , and non-nuclea r plans. I'm really 8 concerned about our obligation to compel the production 9 of that kind of material.
10 JUDGE BRENNER: Well, I would have to reread 11 the request again. But as you go through the 12 categories, it isn't quite that broad. They are talking 13 about Suffolk County plans and plans applying to Suffolk O 14 County. So I think you have exaggerated the problem.
15 MR. SEDKY Well, if you look at the second 16 request -- perhaps I am jumping e-head a little bit.
~
17 We're going to have the same kind of problem, but maybe 18 we will just address that when we get there.
19 20 21 22 23
) 24 25 A
V ALDEMON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
~
7412
() 1 JUDGE BRENNER: You say the second request, 2 and now you have objected to 1 and 6.
g- 3 MB. SEDKY: I'm sorry. They filed a second V
4 request for the prod uction of documents.
5 JUDGE BRENNER: I haven't looked at that and I 6 haven't considered that.
7 HR. SEDKY: Well, we will just leave it 8 aside. The Board has ruled, and we will do the best we 9 can to comply.
10 JUDGE BRENNER: Okay. Now, I am not 11 precluding the fact that where you have a particular 12 great burden, you . iden tif y the document or computer tape 13 or whatever item is involved and discuss it with LILCO O 14 and see if that can be worked out, and I think a good 15 faith arrangement is always possible, and were workable 16 in the past when we were talking about a lot of the 17 documents. We did require LILCO to make it available on 18 Long Island, regardless of where the subcontractors were 19 located, and unless the parties wanted to make other 20 arrangements, and it would be our ruling here that it 21 would be a central, convenient location of the county's 22 choice. That could be Washington, it could be Long 23 Island. But you are not to say that some documents are
() 24 here and some documents are in California unless the 25 parties are willing to agree to other arrangements. For O
ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. DM2/ g202) 554 2345
7413
() 1 all I know, the experts involved from both parties would 2 be in California, just as we discovered that Boston was 3 a convenient location for other documents in another 4 context.
5 MR. SEDKYs We will ask the experts to produce 6 those documents. If they refuse to bring it up to the 7 Board, maybe you can subpoena them.
8 JUDGE BRENNER: That which I assume is 9 central, I assume you will discuss as to the 10 admissibility of the evidence.
11 Do you want to sugges? a date as to when the 12 documents should be produced?
13 MR. SEDKY We will get out a request to our 14 consultants tomorrow. So I guess three or fcur days 15 later to get to the west coast. I would say ten days 16 perhaps to be able to figure out at least what their 17 position is going to be.
18 I have had an indication, I might add, from at 19 least one of them that this is his work, and I guess 20 tha t will just have to be fought in some form.
21 JUDGE BRENNER: Well, you have to consider in 22 the first instance as to whether the person has a valid 23 legal objection. If so, it should have been made a
() 24 while ago, but we will consider the particulars of the 25 objection.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554-2345
7414
() 1 MR. SEDKYa We will canvas them, as I said, I 2 and anything, whatever is responsive, either in terms of 3 either the documents or the individuals -- if the 4 individuals refuse to do it without a court order, we 5 will furnish that to LILCO within ten days.
6 JUDGE BRENNERa I guess, given the request s, 7 as I read them, and just looking at the request which is 8 the subject of the motion to compel, that they seem 9 quite related on the discovery basis, at least, to that 10 which we are going to litigate. If I thought they were 11 overreaching, you wouldn't have had the ruling you just 12 had. .
13 So I am no sure what complaints your O 14 consultants might come up with if it is work that is 15 related to what we are going to litigate he re .
16 Now, if they are going to testify as to their 17 experience in dealing with whatever the subject matter 18 is, certainly other things they have dealt with are 19 pertinent. But we will hear you on particulars.
20 Today is July 20.
21 MR. CHRISTMAN: Judge, pardon me. I don't i
22 want to interject myself, but it would be very helpful 23 for us to have these documents before we do our l () 24 depositions, which need to be done in the next two or 25 three weeks I think . That might influence your O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7415
() 1 thoughts.
2 JUDGE BRENNEBs I was thinking of 10 days as a
- 3 reasonable time to make the documents available. I 4 don 't want to delay the depositions for all of the other 5 reasons we discussed.
6 Can you better 10 days? Does the county 7 know?
8 MR. SEDKY: I suppse we can Federal Express 9 our requests out tomorrow wh'ich is what? Tomorrow is 10 Wednesday. They will get there Thursday. Dr. Coe is 11 out of town.
12 MR. CHRISTMANs I migh t suggest that the 13 request migh t be initially phoned so that the people 14 kno w wha t to expect, and I might also suggest that it is 15 conceivable that some documents have already been 16 compiled. The documents we received on discovery which 17 were very few in number, did have -- were numbered in 18 the upper right hand corner, some of them numbered in 19 the 400 series, 300 series. It is possible, and I don't 20 know, but it is possible there may be already a pile of 21 documents numbered sequentially 1 through 400 or 500 22 that resides somewhere.
23 JUDGE BRENNER: k' ell, I would think that
() 24 everything within the county's direct control now could 25 be made available sooner, perhaps as soon as the end of O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7416 this week, or July 26, the beginning of next week, at a
(]) 1 2 location convenient for the county, to make it 3 available, and LILCO provided arrangements for copying 4 for the county, and hopefully that same kind of thing 5 can be worked out.
6 MR. SEDKYa I think we would appreciate the 7 weekend so we could find it and bring it down to 8 Washington as to the county's own st.uff. I just don't 9 vant to be in violation of an order when these 10 consultants -- we don 't know where they are. All I can 11 say is we will get that request out tomorrow by Federal 12 Express. I know that both Mr. Kainen is going to be out 13 from the 21st of July until the 25th of July.
(h
- 14 JUDGE BRENNER: I don't want to go into that I
15 detail here. Unless you come back with a particular 16 problem, documents now within the county's direct 17 control and possession would be the 26 th . It doesn't 18 have to be Washington. You can work out the location 19 with LILCO as to where you make it available, and in the 20 first instance, whatever would be more convenient to the 21 county, so long as it is a reasonable location.
22 As to documents in the possession of
~
23 consultants and expert witnesses and so forth, I would l () 24 think that we could go the following Monday, which would 25 be August 2, and that is a reasonable time.
O l
l ALDERSON REPORTING COMPANY. INC,
[
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
l i
7417 ,
i
()
1 MR. SEDKY: If we could just do it Tuesday, 2 again, to make sure we get the delivery from the 3 consultants. We may not be able to get it on Monday.
4 JUDGE BRENNER: All right, that is fine, 5 August 3rd, Tuesday. ,
6 I haven't set a cutoff time in te.ms of when 7 LILCO would have to complete the viewing because I don't 8 know the f ull extent of it, and we were better able to 9 handle that the last time when we knew the extent, and 10 we were able to extend that several times. Hopefully 11 the parties can work that out, but if there is a dispute 12 as to a cutoff time --
13 MR. SEDKYs By which they must conclude their O 14 review?
15 JUDGE BRENNER Yes.
16 MR. SEDKY: No, that is not any problem with 17 us. We are very reasonable about things like that.
18 ( Pause) 19 JUDGE BRENNER: Let me discuss the security 20 contention settlement schedule since that will be very 21 b ri e f .
22 As the parties know, in our off-the-record 23 discussions last week, we told them we were entertaining
() 24 the possibility of finding another tribunal for which 25 the security plant contentions would be litigated, and O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7418
() I the parties all agreed that there might yet be 2 substantial narrowing and perhaps close to or total 3 settlement of these issues, and therefore asked this 4 Board to retain jurisdiction, to see if that could take 5 place before us rather than having to involve new people 6 who would have to get up to speed.
7 We tried to be very candid in indicating we 8 were up to speed p ro ced u ra lly , but we are not up to 9 speed in terms of the substance of the dispute. We are 10 worried about our workload on the other aspects of the 11 case, and that is what motiva tes us, and it is not just 12 the workload in litigation, that the prospect of 13 litigating a case in Bethesda would be a nice, novel 14 experience for some of us on this Board. But it is also 15 the process involved in decision writing and 16 consideration of the issues, and decision writing and so 17 on.
18 What we would propose is that the parties 19 report to us on Tuesday, August 3 with a written report, 20 either a joint written report or separate reports that i 21 will have the benefit of consultation as to the i
22 prognosis at that point for settlement or narrowing, and 23 if you have to indicate what issues still remain in
() 24 dispute, if it can be a pleading which we would maintain 25 in confidence as to safeguards inf ormation, you decide O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
7419
()
~
1 what you have to put in the pleading. We would then 2 entertain a brief discussion on that day, assuming we 3 would like the written pleading first thing tha t 4 morning, and then we would try to get to an 5 on-the-record discussion of it as soon as possible, 8 perbsps that day, perhaps the day af ter, to determine at 7 that time whether we don't have to worry about giving 8 issues away because settlement or substantial narrowing 9 is at hand, or whether so little progress has been made 10 that we should give the issues away at that point, or 11 whether you are at some in-between stage and we should 12 hold on to things a little longer. If we elect to hold 13 on to things a little longer, we would do so only until O 14 August 17, at which time we would ask for a furth,er 15 report and then make our decision at tha t point.
16 MR. LANPHER: Judge Brenner, I can tell you we 17 have already talked with LILCO and the county and the 18 staff about when we would have our first meeting, and it 19 probably will be next Monday. So that process is under 20 way.
21 JUDGE BRENNERs Okay.
22 We appreciate hearing that. We had no doubt 23 as to the good faith of the process. We don' t know
() 24 enough to know whether we share the optimism expressed 25 by the parties last week as to the results of the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 l
7420
() 1 process. So hopefully these two dates will help, and 2 you can see why we'are anxious to make decisions one way 3 or the other along the lines we indicated, and on the -
)
4 schedule we indicated.
5 It may be that if you narrow it to one or two 6 discrete issues, that we would be willing to hear the 7 issues. So we are not saying unless you absolutely 8 settle each and every issue we are going to give it 9 away. You may be b'etter off with another Board or 10 judge. We are getting tired.
11 But seriously, the two timeframes we indicated 12 would be important to us. It may be like everything 13 else in life that you would convince us to extend those 14 timeframes, but we doubt it as we prenently view the 15 situation.
16 (Board conferring) 17 JUDGE BRENNERs I suggest that we put off the 18 discussion of findings until another day. Judge Morris 19 said if we can do it in two minutes, we would do it, and 20 I think the answer to that is no. I don't know if we 21 will do it tomorrow, because we want to make sure to 22 finish the testimony, or try to finish the testimony 23 tomorrow. So we will get back to you on the findings at
) 24 another opport une moment in the near future.
25 We will adjourn at this point, and we will O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
~ -
7421 )
(
- 1 .
- 1 reconvene at 8
- 30 tomorrow morning with the continuation s, 2 of contention 7B testimony by the staff witnesses.
s.
3 ( Whoreupon , at 6 :10 o ' clock p.m.', the hearing -
> O 4 in the above-entitled matter recessed, to reconvene at
- s 5 8:30 o' clock a.m., Wednesday, July 21, 1952.)
~,
s' ,.
4
' \
8
, 7
, t l
8 .,_
9
~,
10 -
11 1 g 's.'
12 s ,
i t, s l , ..s.-
' ~
- 13 > -
s.
O 14
~ ',
2
~
u r ,'
15 s 16 -
.i 17 -
w, l
t 18 '
,'N 19 +
20 i
s'-
21 -
22 23 ,
~
O 24 25 O :
.N 4 s
i w ,
ALDERSON REPORTING COMPANY,INC, ; '
-~~
400 VIRGINIA AVE., S.W., WASHINGTON.
~
D.C. 20024 (202) 554-2345 s
I b
N ITUCLEAR REGULATORY CO.P.ISSICN This is to - certif 7 that the attached proceedings before the s BEFORE THE ATOMIC SAFETY & LICENSING BOARD s
in the ::2att er o f:. Long Island Lighting Company (Shoreham Nuclear Power station)
- Da.te of Proceeding: July 20, 1982 6
- Docket s
llumber: 50-322 OL
. Place of Proceeding: Riverhead, New York were held as herein appears, and. that this is the original. transc:-tpt thereof for the- fila of the Cc:::=1ssion. .
Ray Eeer Official ?ieporter (Typed) v~ '
.i
'Q '
Off ia M eporter (Signature)
O l
O' y .-
l l