ML20054A746
| ML20054A746 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/14/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8204160105 | |
| Download: ML20054A746 (200) | |
Text
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NUCLEAR REGULATORY COMMISSION
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- - Q, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD m
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LONG ISLAND LIGHTING COMPANY
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DOCKET NO. 50-322 (Shoreham Nuclear Power Station)
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v DATE: April 14, 1982 PAG"r S:
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400 virgisia Ave., S.W. Washd ig =n, D.
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD G
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In the matter of:
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6 LONG ISLAND LIGHTING COMPANY g
Docket No. 50-322 7
(Shoreham Nuclear Power Station) g 8
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f Legislative Building g
10 veteran's Memorial Drive Haupaugge, Long Island g
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Wednesday, April 14, 1982 g
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Coneerence or eerties in the esove-entit1ea E.: 14 c
matter convened, pursuant to Notice, at 9:30 a.m.
2 15 5
BEFORE:
j 16 v5 LAWRENCE BRENNER, Chairman d
17 Administrative Judge E
18 JAMES H.
CARPENTER, Member Administrative Judge 19 8"
PETER A.
MORRIS, Member 20 Administrative Judge 21 22 0
23 24 i
25 ALDERSON REPORTING COMPANY,INC.
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APPEARANCES:
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Matthew Kelly, Esq.
3 Rockefeller Plaza 4
Albany, New York 12223 e
5 Lawrence Coe Lanpher, Esq.
h Herbert W.
Brown, Esq.
6 Kirkpatrick, Lockhart, Hill, Christopher & Phillips g
1900 M Street NW 8
7 Washington, D.
C.
20036 s
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Anthony F.
Earley, Esq.
O W. Taylor Reverley, Esq.
d 9
Hunton & Williams j
707 East Main Street g
10 Richmond, Virginia 23212 I
j 11 Steve Latham, Esq.and Robert Shea, Esq.
3 Twomey, Latham & Shea j
12 33 West Second Street 5
Riverhead, New York 11901 d
13
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Ralph Shapiro, Esq.
14 Cammer & Shapiro a
9 East 40th Street 2
16 Bernard Bordenick, Esa.
M NRC Staff Counsel b'
17 Washington, D.
C.
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ALDERSON REPORTING COMPANY, INC.
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(The hearing commenced at 9:30 a.m.)
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aoocE eREsnER:
This is a pre _heering conference 3
under the regulations to establish the remaining questions as 4
to the procedural framework for the upcoming evidentiary hearing S
5 and we will do that first.
After that, as the parties know, O
6 we plan to take up matters resolving the procedural framework e7 7
and potential schedule for Emergency Planning issues, or at a
8 least some Emergency Planning issues.
de will do that after r) ci 9
the lunch break because we haven't had a chance to read all
- io 10 your filings on the subject yet.
5 11 He will take up any matters relating to security is d
12 Planning last, and we hope to restrict it to matters that can F.cd 13 be discussed on the record.
S If there is a need for any in E
14 camera matters that have to be on the record, we are going to 5
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2 15 have to decide whether we want to do it here or by some other g
16 means.
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17 MR. BROUN:
Judge Brenner, for sure there will be 5
18 some matter that will have to be discussed today.
k 19 JUDGE BRENNER:
Well, I have been lead to believe M
20 that perhaps there were, but we will talk about it at that 21 time.
22 Has the discovery dispute been resolved regarding 23 SOC's Motion to compel?
24 MR. LATHAM:
Your Honor, I believe, I just talkeu OV 25 l to Mr. Earley, and he said Mr. Flanagan wanted to have a conver-1 ALDERSON REPORTING COMPANY, INC.
l
647 1
sation with me, and I am not sure that it can be but I would
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2 like to talk to him.
3 JUDGE BRENNER:
Well, all right, we will wait with 4
that for after the break also. As we indicated yesterday, it
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is the type of dispute that if it can't be resolved between the M
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parties, then we will be here a long time resolving many disputes.
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So, if it can't be resolved, we want to know why it M
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couldn't be resolved.
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9 I would ask counsel for the parties to state their iog 10 appearances for the record at this time.
Please go slowly, g
11 the recorder is going to charge your names, and hopefully B
j 12 from then on will identify the right speaker with the right 5d 13 words.
I guess we will begin on the Board's left.
h 14 11R. EARLEY:
Anthony Earley, Hunton & Williams, E
E 15 representing.the Lighting Comp.any.
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16
.MR. REVELEY:
,W.. Taylor Reveley, Hunton & Williams, M
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5 18 MR. SHAPIRO:
Ralph Shapiro, representing the North
=b" 19 Shore Committee Aganist Nuclear and Thermal Pollution, Intervenor 8n 20 in this proceeding.
I think it might be appropriate, Judge 21 Brenner, in accordance with our off-the-record discussion 22 earlier, to state that I represent only the North Shore
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23 Committee.
There is a long history involving the Oil Heating I
24 Institute of Long Island, which I don't think is material now, 1
l 25 and they have not evidenced any interest now in the proceeding l
ALDERSON REPORTING COMPANY,INC.
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for many, many years, and I have filed a Notice of Appearance T
2 originally only on behalf of the North Shore Committee.
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JUDGE BRENNER:
We will come back to that.
4 MR. LANPHERL _-Lawrence Coe Lanpher representing
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Suffolk County.
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6 MR. BROWN:
Herbert H. Brown appearing on behalf of e
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Suffolk County.
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MR. LATHAM:
Steve Latham appearing on behalf of d
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the Shoreham Opponents Coalition.
-iog 10 MR. SHEA:
John Shea appearing on behalf of the g
11 Shoreham Opponents Coalition.
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12 MR. BORDENICK:
Bernard Bordenick, NRC staff.
We Eo gS
.13 also have two additional staff counsel present.
One will V
y 14 introduce himself, and the other is sitting in the audience.
2 15 Richard Rawson, and also I would like to introduce to the Board s
16 Stewart Blass who is the Technical Representative and the sW b'
17 legal representative of FEMA, sitting in the audience.
5 18 MR. REPKA:
David Repka on behalf of the NRC staff.
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19 MR. KELLY:
Matthew J.
Kelly on behalf of the n
20 State of New York.
21 JUDGE 3RENNER:
We have a new Board member since 22 the last conference of the parties, and that is Judge Peter 23,
A.
Morris on my right.
As I mentioned at the limited appearance l
24 l session yesterday, Judge Morris holds a Doctorate Degree in
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25 Nuclear Physics and a Bachelor's Degree in Mathamatics.
I ALDERSON REPORTING COMPANY. INC.
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A brief sketch of Judge Morris' background similar
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2 to the sketches we provided for the other Board members would 3
be that he worked on the SavannahRiver Project for the DuPont
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4 Company in the 1950's.
Thereafter, Judge Morris held several 5
g high level positions with the staff of the Atomic Energy 9
6 Commission, including that of the Director of the Division R
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of Reactor Licensing from 1966 to 1972.
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8 Judge Marris left the Atomic Energy Commission in dj 9
1974.
Prior to his present position, Judge Morris was 8g 10 Executive Vice-President of Scandpower, Inc, which was a Il consulting company affiliated with a Norweglen. company involved a
N 12 in both nuclear and non-nuclear energy.
5
{ ) g" 13 As we also made known at the lhaited appearance m
5 I4 session yesterday, we will not have hearing sessions the week
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That was one week that was in doubt, and we u
y 16 indicated that we would tell you definitely one way or the w
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I7 other this week.
So, there will be a two week recess.
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18 Summarizing the evidentiary hearing, we will begin Po I9 g
at 10:30 a.m. on May 4th in the Legislature's Hearing Room t
n 20 in Riverhead.
We will run through Friday, the 7th.
There will 21 be all day Friday to approximately five o' clock.
We will then 22 recess until May 25th, on which day we will also begin at 10:30 23 That one day session on the 25th will be in the Riverhead a.m.
24 Town Hall.
Then commencing on the 26th through the 28th of 25 that week, we will be back in the Legislature's Hearing Room i
ALDERSON REPORTING COMPANY, INC.
650 I
in Riverhead, and thereafter and in continuous session through
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2 June and July we will be meeting Tuesday through Friday.
3 If there are any changes in location through that
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4 lengthy session, we will, of c'ourse, make it known in advance.
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MR. LATHAM:
Judge Brenner, two quick points; 3
0 will each Tuesday hearing begin at 10:30?
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JUDGE BRENNER:
Yes, unless we take a poll from the s
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parties otherwise.
The reason for that is that if there is d
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9 an early morning flight from Washington--
g 10 MR. LATHAM:
The other concern that I have and I E_
II think I brought this up with Miss Dempsey is that there are f
I2 a number of rooms to the rear of the Legislature's Hearing a"
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Room in Riverhead.
Do you know whether any provision is goin9 V
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I4 to be made to make rooms available to parties for work or E
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lunch or other things?
Or should we take that up separately?
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I0 I don't know.
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I7 JUDGE BRENNER:
Take it up separately.
We will
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M 18 have an off-the-record discussion out loud but not on the P"
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written record as to the facilities there today, and you can n
20 bring that up again then.
21 Have the parties agreed upon the order in which the i
l 22 testimony which was filed on April 13th will be heard?
As 23 you know, we will begin with the testimony on Contention 7b i
24 }I from the County and SOC witnesses.
Will we take it up in
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numerical order thereaf ter?
ALDERSON REPORTING COMPANY. INC.
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MR. LANPHER:
Judge Brenner, I think I can speak
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2 and the parties can correct me if I am wrong, the parties have 3
agreed on the following.
As you indicated, we will begin with C%
4 some County and SOC 7b witnesses, and then we propose to go
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to Suffolk County 17 followed by SOC 19j, Suffolk County 11, 3n d
6 Suffolk County 4, Suffolk County 9, Suffold County 10, Suffolk e
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County 2, and then Suf folk County 5.
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8 JUDGE BRENNER:
All right.
I have looked at the dd 9
testimony that we have received very briefly, and with regard iog 10 to the County's testimony, there was no accounting either by 3
5 11 its presence or in the letter indicating that we would receive S
d 12 it today with respect to Contention 10 or 17b.
Are you filing Ead 13 testimony on those contentions?
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14 MR. LANPIIER:
Ne are going to proceed by cross a
2 15 examination on those two issues.
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16 JUDGE BRENNER:
All right.
Now, there was also a
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17 note in the file with respect to Contention No. 4 and the 5
M 18 Quadrex Report.
Have you discussed that note with the authorities
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19 Mr. Lanpher?
M 20 MR. LANPiiER:
I have not nad an opportunity to.
21 JUDGE BRENNER:
Could you refresh my recollection 22 as to the exact request?
We are talking about the Waterhammer i
23,
issue.
24 MR. LANPIIE R:
The Watbr 'Asinm6r issue, Suffolk County 4 (1) 25 our witnesses are preparing testimony and a document the NRC ALDERSON REPORTING COMPANY, INC.
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was requested.
It was the Quadrex Report.
That document, l
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2 while some of the underling data the NRC staff indicated that 3
they would make some of that available but they refuse to
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4 provide the document.
A week ago today, we got the final e
5 refusal from the staff and on last Thursday we filed a Motion Q
6 To Compel.
Late Friday afternoon we recieved the document by R
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which time our witnesses had filed the pretrial testimony on 3l 8
issue 4 and was working on other testimony.
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the document on last Saturday and found it has some very
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11 his testimony, but for obvious reasons wasn't able to do so B
j 12 because we didn't receive the document until late in the 5
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y 14 that testimony by next Wednesday which will incorporate points 2
15 to be made due to the Quadrex Report.
g' 16 JUDGE BRENUER:
All right, would you propose to do M
d 17 it by addenda, or would you rework it within the testimony and 5
M 18 re-serve it?
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19 MR. LANPHER:
We will do whatever is easiest, prob-g M
20 ably by addenda, but until the expert has a chance to review 21 that carefully, I can't categorically promise that.
22 JUDGE BRENNER:
I will hear from the staff on that
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request.
24 MR. BORDENICK:
I have no objection to their filing 25,
the addenda.
I would point out for the record, though, that ALDERSON REPORTING COMPANY, INC.
653 1
I did not receive formal notification that they wanted the 2
report until a letter dated March 29th.
Since the Wa.ter.Jarnmet; 3
contention apparently will not be taken up until the last
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week of May, I don't think it will cause any inconvenience to 4
e 5
the staff if they filed an addendum to the file.
I have not U
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had an opportunity to look at the testimony that they have R
7 filed, so I am somewhat at a loss as to understand what the s
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addendum is for or is encompassing, but evidently the Quadrex 0
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Report data that was available to them last week.
I have no zo 10 objection to that.
We are preparing for cross examination on E
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12 JUDGE BRENNER:
You may be right that we won't 3
y 13 get to it until the latter part of May.
As I count the issues 7(
h 14 it would come up five.
It's right on the edge.
We might get g
15 to it the first week.
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16 MR. LANPHER:
I agree with the schedule that Mr.
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Given the circumstances, it might be well 5
5 18 to put it further down the list to insure that it will not
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N 19 come up the first week of May.
8n 20 MR. REVELEY:
Yes, Judge, I think that is well 21 advised.
Why don't we move No. 4 down to the bottom of the 22 lot, and we would ask that if the County does have an opportunity 23,
to file an addendum to its testimony, that we have the same 24 opportunity once we have looked at the report also.
We have O
25 l not had it either.
ALDERSON REPORTING COMPANY, INC.
654 1
JUDGE BRENNER:
Let's do it this way.
We will 2
grant the request for the County to file the Addendum on the 3
21st of April, which is next Wednesday.
I am hoping you meant 4
that as a receipt date, I assume as far as the pcrties and e
5 the Board is concerned.
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6 We will still--I want to receive a combined cross
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examination plan on that contention.
I don't want a cross N
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examination plan on theCounty testimony that we recieved so d
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far and then a separate cross examination plan on the addendum.
10 We Will get to the cross examination plan schedule in a moment--
11 well, why don't we get to it now.
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12 On the testimony filed by today, we requested all 5
13 the cross examination plans to be received by us by April 27th.
O 14 Why don't we take Contention 4 out of that schedule 2
15 and we will require the cross examination plan for Contention c:.'
16 4 on May 4th.
j us 6
17 with respect to any further testimony that the E
18 staff or LILCO might want to file, that seems to me would be E
19 more in the nature of rebuttal.
In other words, even if the g
n 20 county had the Quadrex Report so that this information would 21 have been included in their testimony, you would not have seen 22 their testimony filed in any event.
23 l MR. LANPHER:
We are not saying that the Quadrex--
24 We have not seen the Quadrex Report either.
25 i JUDGE BRENNER:
I see.
l ALDERSON REPORTING COMPANY, INC.
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655 1
MR. LANPHER:
We are in the same position that the
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2 County is at.
We didn't have the Quadrex.
If they feel they 3
need to file something because they have gotten it, we may or
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4 may not, once we have reviewed'it.
I think we need to follow 5
g up on that.
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6 JUDGE BRENNER:
Well I hate to put it on the same--
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well, put it on the same footing as if you had the Quadrex s
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Report both of you, and if that were the case you would have d
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been free, Mr. Reveley, to file testimony on the Quadrex zc 10,
Report without having seen the County's testimony, so you, too, E
11 may have the option to file an addendum by the 21st.
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12 And then if there is any need for rebuttal on any c
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13 testimony, we will take that up as rebuttal.
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14 MR. LANPHER:
Two points, Judge Brenner.
- One,
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15 LILCO did pursue the Quadrex Report to my knowledge, and e
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accordingly I don't see why they dosfall in the same position e
d 17 as the County, but you may rule on that as you wish.
E 18 JUDGE BRENNER:
I am going to give them the same Po 19 g
right as I gave you if they are interested in the report and n
20 let's leave it at that.
2I MR. LANPHER:
The only other thing, we would object 22 to a revision of the schedule which would have the effect of 23 moving suffolk County 4 to.the end.and next to Suffolk County S-+
24 JUDGE BRENNER:
Let me stop you there be cause that O
25 '
wasn't my ruling, but I can see where you might have thought ALDERSON REPORTING COMPANY, INC.
656 1
that it was.
I will ask the parties sometime today to decide
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2 when to try that issue so that it would not be tried the first 3
week in May.
As to where in the order it is, so long as it
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4 is not tried the first week in'May, that would be acceptable.
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5 So, it is not absolutely essential that you move it down after 24 6
5.
You might want to move it close to there so that we can R
7 be sure not to get to it the first week, but I think if you a
8 move it down after ten, for example, we would be reasonably 0
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sure of not getting to it and see if you can work something 7:o 10 out there when.we come back, but let us know if it has been
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j 11 resovled or come back to us for resolution. Then if it is S
j 12 not resolved, I will allow you to explain what your problem E
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E 14 With respect to the testimony that is going to be U=
2 15 filed on May 4th, we would like to receive the parties agreed w=
16 order of trying that testimony and outlay a written list
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17 that you can hand to us at the hearing.
If you know in advance
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M 18 we would be happy to receive it from a spokesperson for all
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19 the parties in the mow in advance.
With respect to the 8n 20 testimony that will be filed on May 25th, the same ruling, that 21 is, give us a written list of the order that the parties have 22 agreed to try their testimony on May 25th, or in advance, if
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23 you know in advance.
24 With regard to the schedule for cross examination U
25 plans for testimony that would be filed after today, depending ALDERSON REPORTING COMPANY, INC.
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on the progress on the week of May 4th, cross examination plans
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2 on some of the testimony that will be first filed on May 4th, 3
must be received by the Board on Thursday, May 13.
Now, that
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4 is a change from our normal Tuesday day, and I will explain a
5 why in a moment.
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As to the rest of the May 4th testimony, we would R
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want to receive the cross examination plans on Tuesday, May 25.
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Now, we don't know where to divide it yet.
On May 7ta dd 9
we will know how much progress we make that week, and at that io 10 point we will take a look at the testimony and the order to E
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11 which you will have agreed upon for the testimony filed on B
g 12 May 4th and determine how many contentions we need cross 5
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examination plans for on May 13th and how many contentions 13 14 the cross examination plan can wait until May 25th.
2 15 Now, the reason why we are requiring the cross 16 g
examination plans on Thursday, May 13th rather than the followin g A
d 17 Tuesday is that the Board will be out of town the following week 5
18 and we want to receive the cross examination plans on Thursday k
19 so we can work on them on Thursday and Friday, and you will 9n 20 have had a recess the first part of that week so that will 21 give you more time than you normally have during the hearing.
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When we get on May 7th, I would ask the parties to 22
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23 remind the Board that we have to divide up the testimony that 24 gs was filed on May 4th and schedule for cross examination plans.
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MR. SHEA:
Judge Brenner, we are getting into an l
ALDERSON REPORTING COMPANY, INC.
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658 1
an area that is of major concern to SOC.
In your order D)
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2 concerning the cross examination plans we carefully reviewed 3
that and we have a number of things we would like to air at
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4 this time.
First we believe that the plans are very burdensome e
5 and already impose significant paperwork burdens on the parties A9 j
6 and we are already under a very difficult strain as it is.
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We also have some concerns about the Board's desire s
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to force SOC and Suffolk County to join as parties for the d
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purposes of cross examination, but not to force staff and LILCO xe 10 to join.
we believe that this is an improper attempt to force j
11 joinder at this stage.
I think the Board has not taken recog-B y
12 nition of the fact that there are experienced counsel involved 5
13 on this case and we have no desire to get involved in duplicativ e m
14 cross examination.
One of the major problems that would be 2
15 interjected here by this cross examination plan procedure is E.'
16 the coordination that the parties will have to go through while j
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17 they are in the midst of all the other duties that the Board
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18 has imposed on them.
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19 If we are to coordinate cross examination with the M
20 county, it means the selection of lead cross examiner, the 21 exchange of direct and cross examination plans a week or so l
22 ahead of time, of review and discussions, production of another
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document, all while we are trying to complete preparation of 24 f-other matters for the Board.
We strongly oppose this procedure.
V) 25 l It might have made sense if we had segmented proceedings where ALDERSON REPORTING COMPANY, INC.
659 1
there was a hiatus between the hearings where we had a couple
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weeks off and a couple of weeks on, but if we are going to V
3 be in hearings continuously, this procedure just really is 4
just an unrealistic burden, e
5 JUDGE BRENNER:
Well, as to the basic requirement E9 6
of cross examination plans, we are not going to reconsider R
7 that.
They are going to be required.
They are very important E
8 for the Board and for the progress of the proceeding.
They...
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9 help us in knowing what areas of the testimony will not be ze 10 thoroughly explored, and if they are areas that we want to j
11 explore, then we can prepare our own questions in advance k
j 12 focusing on those areas.
5d 13 We can also see where-the cross examiner is
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h 14 going.
There is a long list of reasons.
I have seen them in g
15 a proceeding and they make a big difference from the point
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d 17 MR. SHEA:
Well, it might be sensible if we had w=
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18 a break in the hearings.
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20 21 22
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JUDGE BRENNER:
Go ahead, Mr. Shea, I'm sorry.
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2 MR. SHEA:
Well, Judge, SOC can attempt to file a P ant at each stage of the proceeding but it's going to be l
3
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4 virtually impossible to file a single plan with Suffolk County V
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and I'm sure Suffolk County has their own views on this.
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6 We do intend to coordinate with the County but the m
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7 type of coordination that you are requiring ahead of time in s
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order to file a single plan from the County and SOC, we believe a
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is unreasonable.
We will try to make our best efforts to give io 10 you a plan from Soc and then to subsequently work with the 3
5 11 Attorneys from Suffolk County.
We do that anyway.
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12 We have no intention of going through these hearings Eo d
13 in a vacuum and not closely coordinating our efforts with the
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14 Attorneys for Suffolk County.
That's not in question.
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15 MR. BROWN:
Perhaps you would like to hear from g
16 the County.
We've got something to say.
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17 Our point as I think Mr. Shea is alluding to also 18 isn't an objection to filing of plan.
It's probably useful 5;
19 for everyone.
Certainly the Board has explained why it's n
20 useful to the Board.
21 Well, I think he was objecting more to the idea 22 of a combined plan.
7-V 23 Our objection is not to filing a plan which indicates i
24 the topics of our cross examination and the kinds of things 25 that Counsel normally do in advance so that we ourselves can I
ALDERSON REPORTING COMPANY, INC.
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661 1
prepare and to that extent we don't have a problem.
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2 Our problem arises though because this isn't a case 3
where there are different intervener groups with commong inter-
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4 ests.
In this case, the SOC Organization comes at the issues 5
from the standpoint of its own constituency and its concerns e
3-6 and the breath and vitality of its membership.
I don't speak R
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for that and I don't fully understand it.
3 8
8 What I do understand, though, is the complexity dd 9
of the County's position in this case.
That has three parts.
Ng 10 The first is that the County is a proprietor here.
It is a E
5 11 landowner and it is concerned in part, with its participation g
12 with respect to how this plant will affect the County as a 3
d 13 landowner and a proprietor.
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15 to be the Steward of the public interest.
That is, it serves j
16 to exercise the functions of Government, naturally police, m
i 17 fire, and other responsibilties that go to the public welfare.
M 18 Third, the County is very large consumer of electric 5
C 19 power.
These are distinctly different from the purely private R
20 obligations of SOC and its membership.
As we look at the 21 issues, we are intensively involved with our own clients, 22 members of the County Government and we come at this from that 23 perspective.
24 It's so much so a different matter that it does 25,
not lend itself to a combination of plans and to the extent to ALDERSON REPORTING COMPANY,INC.
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2 The positions don't cover each to the extent to which we are 3
asked to file a combined plan.
It's putting us in a position
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5 able to work out those problems in a way that is consistent 3nj 6
with expeditiousness that is required by this case.
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JUDGE BRENNER:
As to contentions that are only n
8 8
County contentions, SOC would purely be in the role of a follow-n dc 9
up question in any event whether we had cross examination i
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If indeed at all they have the right to cross l
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11 examine on those contentions and that depends on their relation-
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12 ship to their other issues.
Eo (2) d 13 MR. SHEA:
Judge, you are not questioning our right E
14 to cross examine on Suffolk County contentions, are you?
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No.
What I said was that
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It depends on the Prarie Island Test, on the 18 nexus of those issues to your other issues, whether they are 5
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19 similar to your issues and in some cases they are going to 2
20 be identical, of course, you have the right to cross examine.
21 But where Suffolk County has an issue that SOC does not have, 22 you do not have the absolute right to cross examine on that L,_ J 23 issue, unlike the County which can participate in an interested 24 state and mode.
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25 The idsa of coordination was to assure that the l
l ALDERSON REPORTING COMPANY,INC.
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process that would have take place would not take place before
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2 us in the Hearing Room.
You're going to have to have that 3
coordination before the day of cross examination.
O(~i As I understand some of your comments that you plan 4
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insist must take place before the day of cross examination, dd 9
sometime between the filing of the plan and the day of the io g
10 cross examination.
Is that what you are getting at?
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11 MR. SHEA:
That may well be one way of looking at.
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12 What I guess I'm actually saying is given the fact c
13 that there are different perspectives here and they are m
14 legitimate, underscored by a very important consideration, 35 2
15 it seems that the best alternative would be not to require j
16 coordination.
What the underscoring is relates to the fact A
17 l
that everyone at this table has extensive experience.
There
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18 is no one here who is new at trying cases or doesn't understand l
19 the rules of cross examination and the rules against repetition M
20 of cross examination or cumulative records.
21 In our experience I think that everyone else at 22 this table, we have dealt with that.
No one's purpose here 7-(J l
23 !
is to be dilatory and take actions which are going to compound 24 confusion.
My own hope would be and I would like to put this 25 l forth as a suggestion at this time, is to have the parties ALDERSON REPORTING COMPANY, INC.
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664 i
submit their individual plans.
We would be presumably, I haven't
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the top of my head, with exchanging with SOC our plans and
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course of the first week, I think that will be apparent on 3
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12 JUDGE BRENNER:
We didn't give the Staff or Eo (Z) d 13 LILCO an opportunity purposefully because we think we know l
14 what we will do in any event.
9 15 Mr. Shapiro, I didn't call on you at this point.
s 16 It's not going to be pertinent until we get '.o emergency
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17 planning with respect to your client and we will have to see M
18 what the issues are among the parties there.
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l 20 going to require a late intervener on emergency planning since i
21 on that subject there are two interveners.
That is, two 22 private interveners other than the County but we will take that
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24 So don't assume that the rulings we make here will O
l 25 I apply precisely the same to the emergency planning issues.
I ALDERSON REPORTING COMPANY, INC.
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There may be some differences but the spirit of
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If anything, what I'm saying on 3
emergency planning it's going to have to be closer to a
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consolidation for purposes of presenting testimony and cross V
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examination than it will be here.
But we will take that up En 8
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With respect to the non-emergency planning issues, s
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Order also, the cross examination plans serve several purposes.
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13 we knew that from the beginning.
So therefore, the reason 14 we kept the cross examination requirement is it is also very 2
15 helpful to us as I indicated again today.
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16 What we will do to relieve some of your burden 2
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n 20 You will know basically where you are coming from, to put it 21 bluntly.
The burden in working out the details as to this 22 particular line of questioning together is time consuming 23 prior to the filing of the plan.
Is that in essence, one of 24 your main problems, Mr. Shea?
25 MR. SHEA:
Well, we have that threshold objection ALDERSON REPORTING COMPANY, INC.
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first of all.
I'm not quite sure what your ruling is as to
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We are not supportive of that 3
initial joinder that seems to be made in pages 3 and 4 of your
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SOC believes that it should be able to take a leading 5
g role in cross examination in any of its contentions--
9 3
6 JUDGE BRENNER:
In any of SOC's contentions?
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MR. SHEA:
In any of SOC's contentions.
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8 JUDGE BRENNER:
That's consistent with our order.
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If you look at page 4 of that order zo 10 which are referring to, and that's the March 19, 1982 memorandum 11 and order regarding change in schedule for pre-hearing conference 3
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place before the plans are used.
We will apply that same n
20 paragraph to Suffolk County and SOC.
In other words, you are 21 no longer absolutely required to file a single cross examination 22 plan which I might add was not an absolute requirement in any g-)g 23 event.
We did give you the out in case there was a dispute 24 in that order.
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fullest extent practicable before you file it.
So we'll see
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redundant.
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they're used, you are going to have to get together and cross 9
6 out the redundancies so that we don't have to worry about it R
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on some contentions and I don't want to wait until the absolute d
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day that they are being employed to find out that the question zog 10 has to go through it.
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suggestion made sense.
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MR. LATHAM:
Judge Brenner, we appreciate that.
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which both parties are in agreement, we don't want to have-io g
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You 21 seen to be giving us that right.
22 JUDGE BRENNER:
That's correct.
What we l
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control is the redundancy, assuming we rule that you have the 24 right to cross examine on a contention which you yourself do (G/
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The guideline there is no secret.
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ALDERSON REPORTING COMPANY, INC.
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extensive case law on it.
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That will be the guiding light e
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8 MR. BROWN:
I frankly don't forsee any conceivable a
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I think if it were to have gone farther, i
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24 So as a very practical matter, it is conceivable O
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ALDERSON REPORTING COMPANY, INC.
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two questions or certainly invoke an answer which had been 2
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JUDGE BRENNER:
We're all familiar with that.
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16 MR. SHEA:
Judge Brenner, does that listing on w
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I know you have set up
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No.
In drawing the order that's 21 not what we had in mind.
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the order of cross examination, after each direct testimony.
24 JUDGE SHEA:
So the applicant will have to go first?
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Yes.
ALDERSON REPORTING COMPANY,INC.
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The order didn't deal with that question as to 2
what order the direct testimony would be taken up and there
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of the order of cross examination.
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Judge Brenner, if I may raise one Ecd 13 point on that, I very quickly reviewed testimony last night
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17 JUDGE BRENNER:
Let me amend what I said.
We are 5
5 18 going to have a combined panel of the staff and the applicant
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20 any reason not to.
That is, if there is a disagreement and 21 we will also be having a combined panel of the County and 22 SOC witnesses.
23 MR. LANPHER:
That was really the point I was going 24 to raise.
My brief review of the testimony last night suggested
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that it might be most efficient if the applicant and staff 3
ALDERSON REPORTING COMPANY, INC.
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witnesses go on together and be cross examined on each of their
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JUDGE BRENNER:
Well, I haven't read the testimony g) e 5
very much yet but our order in advance of the testimony set E
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up that procedure.
We are not talking about joint testimony e
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a matter of coordination of the witness panels for convenience dd 9
of the cross examiner mainly.
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14 examination it would most often be somewhere between cross 2
15 examination and redirect.
The County and SOC will have that 5
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20 so that we will consider whether the panels should be separated 21 as to all or part of the testimony for that reason.
22 There are the three issues on which the staff O
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review was still pending and testimony filing on those issues i
24'I has not been scheduled for that reason.
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ALDERSON REPORTING COMPANY,INC.
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benefit of the filing schedule by the staff.
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one of those issues, the Remote Shut-Down Panel, the Staff
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This is April 1982, what's the status n
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5 MR. REPKA:
Beyond the April 982 date, I don't E
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have any difficulty filing testimony by the 25th of May on that 3
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JUDGE BRENNER:
Did you contemplate a further ioy 10 Staff written review.
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11 MR. REPKA:
I can't answer that right now.
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Ed 13 JUDGE BRENNER:
Here is the problem.
The reason (1) y 14 we didn't schedule testimony filing by the other parties, is E
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If you wait until the filing of testimony on May 25th, w
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18 They are also entitled to supplemental discovery 5
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If the review is going to be a
20 complete in April, then I guess we want the written embodiment 21 of that review in April also.
22 But what mechanism with the Staff review be 23 completed?
I presume it would be the issuance of something 24 in writing.
I'm not saying it has to be an SER supplement, O
25 it could be called anything.
ALDERSON REPORTING COMPANY. INC.
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MR. BORDEN.ICK:
I think the Board gave us the option.
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2 I think what we are saying is that we don't know whether we 3
will take option a, b, or c at this point.
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4 JUDGE BRENNER:
As.to the form, take any option e
5 you want,'a supplement, testimony, whatever, but it should be 29 6
filed when the review is completed, not delayed until a testimony G
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filing of testimony.
We're going key the further steps of d
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supplementary discovery and the testimony filed by the other iog 10 parties after if they have received the Staff's issuance in 3
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I take it that's correct?
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That's correct.
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16 JUDGE BRENNER:
We are just talking about the remote W
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5 20 We are not talking about discovery on many issues.
With that 21 in mind, we would set a schedule which recognizes the right 22 to discovery as to any new matters in that Staff review by 23 the parties of discovery requests being received seven days 24 after the receipt of the Staff's issuance.
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Any objections to those discovery rsquests would ALDERSON REPORTING COMPANY,INC. -
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have to be received fourteen days after--Well, let's key it
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request would have to be received.
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seventh day, the objections will come on the fourteenth day.
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Responses to the discovery would have to be received R
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fourteen days after the request were made.
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1:o 10 Now if the Staff takes the option in the initial 3
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If the day ends up on a weekend or a holiday, just move 21 to the next business day.
22 MR. LANPHER:
Judge Brenner, if I could ask for s
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that the County's experts, ERG and MHB, are on that receipt
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will be immensely helpful for moving along fast.
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JUDGE BRENNER:
All.right.
We'll key the received V
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day from your receipt with the knowlege that it would have to d
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be sent to your experts on a very expedited basis.
That is, o
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delivery.
If there is a problem, we will adjust for it.
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The format would be 14 the same.
That is that the Staff should not wait until some b
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We need to get your review.
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those issues, I believe it was the containment isolation issue,
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Is that correct.
3 MR. REPKA:
I believe we had an August date on one
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JUDGE BRENNER:
It's possible that we are going En 6
to require proposed findings on non-emergency planning issues R
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that we try in the first phase.
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It may be July, it may be later.
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If there is an expected need for a depositon l
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22 There is nothing to preclude the asking for all documents now.
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now, at that late date.
Hopefully that can be pursued informally
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Does SOC e
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us a projection.
io 10 MR. LATHAM:
That's helpful.
I appreciate that.
3 5
11 It's not clear to me, Judge Brenner, that we will.
d 12 I think one of the matters that I want to take up with Suffolk 3
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21 JUDGE BRENNER:
All right.
What I was mostly fg interested in was not the areas where you do have the overlap 22 l
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O 25 I MR. LATHAM:
I was referring particular to--I was l
ALDERSON REPORTING COMPANY, INC.
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referring particularly, I was trying to direct that answer to
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Let me make this point.
The same e
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I certainly think that we would attempt 20 to do that.
21 JUDGE BRENNER:
That would help you also but you l
l 22 are running out of time.
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23 MR. BROWN:
I would like to raise a point.
I don't 24 understand why SOC couldn't cross examine on any issue given 7_
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the fact if there is direct testimony on that issue, the party 25l ALDERSON REPORTING COMPANY, INC.
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putting it forth has the burden of proving what the party is O
2 putting forth.
If that affects the right of another party in 3
the case which has been admitted because its interests are
]
4 at stake, it would seem to me that that party has the right e
5 to put the proponent of the testimony to the test of proving h
h 6
its point.
R 7
JUDGE BRENNER:
I'm not going to discuss the Prarie 8
Island Rule and the abstract now.
When we get to particular dd 9
testimony we will look at it and discuss it in that context.
?5 g
10 There is not an absolute right for private interveners to 11 cross examiner on contentions of other interveners.
is j
12 However, where it does affect their interest, they 5
13 do have that right.
The rule may be stated simply but may not l
14 be applied quite so simply and you have to take a look at the 2
15 particular issue.
j 16 As we indicated in one our previous orders, and us 6
17 I guess I alluded to it earlier this morning, we are going 5
{
18 to require proposed findings on the issues which we will try E
19 g
in the first phase on the schedule provided by the Regulations n
20 after the conclusion of that phase.
So I'm forcasting that 21 schedule in advance now.
22 At the first day of hearing, we will permit opening 23 statement by Counsel if they wish, hopefully not to exceed 24 about ten minutes.
O 25 We've been monitoring the discovery, not as closely ALDERSON REPORTING COMPANY,INC.
681 1
as we do when there is a dispute but we've been reading it.
(])
2 It appears in some instances that the discovery may have 3
narrowed the dispute since the original wording of the conten-(~j) 4 tions.
In some instances it may have broadened it.
We are
~
5 not going to require re-wording of the contentions to conform e
Ea
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6 to that.
R 7
However, hopefully the parties are now channeling n[
8 the litigation with the advantage that they have of the d
c; 9
discovery and will be focusing on where the real areas of 10 dispute lie.
11 Consistent with that, either the open written a
y 12 summary of the testimony which we've required, presumably c
(g $
13 already has been geared to those points.
My brief reading
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m h
14 indicates it has.
If you will consider that for the testimony 2
15 not yet filed, that is, where there is a particular point E
g' 16 where the litigation is going to be narrowed or focused on w
d 17 it should be highlighted in that summary.
5 M
18 In addition, we'll allow Counsel to make an oral 5
{
19 statement to that affect, if that's the case, before the n
20 litigation of each contention.
That is if you are going to 21 be focusing on a particular point and the wording of the 22 contentions, therefore is broader than where you are now going 23 with the litigation, that would help us if you would indicate 24 that.
25 When a testimony is actually presented if parties ALDERSON REPORTING COMPANY, INC.
681 1
wish, we will permit one of the witnesses of each panel for each h
2 party, to make a brief oral summary, hopefull about five minutes 3
of the testimony for the benefit of the audience.
Sometimes
{')
4 we have people here who have not read the written testimony.
ie 5
It could be similar to the written summary that you have bl 6
provided but it would be in the witness's own words and we R
7 will consider part of the sworn testim my.
It's not an s
8 8
opportunity to give new direct testimony, obviously.
It's r) ci 9
an opportunity to briefly summarize the written testimony as 10 filed.
That's not required.
That's up to the parties.
E g
11 In a conference call, the Board discussed the is g
12 possibility of holding a settlement conference, either on the 5
13 record or off the record or I think it was suggested by l
14 Mr. Earley, perhaps part on and part off the record, but in 2
15 any event to see if there is a possibility of partial settlement 5
y 16 or total settlement on some of the contentions.
We were us 17 talking primarily of the QA/QC matters but we hold the offer 5
{
18 open as to any matters.
E 19 Presumably these kind of discussions have taken n
20 place and for all I know may continue to take place among the 21 parties but the if the parties jointly believe that the Board's 22 g
assistance would be helpful in that kind of settlement U
23 ;
conference, we are available.
At this point it would most 24 likely take place after the testimony is filed, rather than 25 f before.
We will set aside a time out of the hearing date to i
ALDERSON REPORTING COMPANY,INC.
l 683 1
1 do that.
It may be helpful even on QA/QC notwithstanding 2
that the differences between the parties appear to be large
()
3 to focus in better on which items in the testimony can be 4
stipulated to.
We might be able to get partial stipulations
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e 5
of fact, although there might be violent disagreement as to E
6 what those facts in the larger sense for purposes of our R
a 7
decision.
That's the type of thing we could discuss at a n[
8 settlement conference too.
It's less burdensome to the parties dd 9
than requiring written stipulations of fact and we can have the i
h 10 opoortunity for some give and take on it also.
E 5
11 So we remain available if all parties concerned j
12 with a particular issue would like to have such a conference.
S 13 MR. BROWN:
I might comment on that.
r3 g
(/
m l
14 I don't think it is possible in light of the 2
15 posture of the discussions that are going on.
What has s
16 happened is that in the case of every other operating license j
w 6
17 application, the Staff has met with local officials and has
(
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18 engaged in commentary which our understanding will lead to E
19 LILCO proposing a sort of re-verification in the next week.
g l
20 That's ou.tside the hearing process.
21 At the same time that that's occurring, there has 22 been a great deal of troubled concern by both the Legislature l
23,
and the Executive on this.
The Executive last week wrote to 24 the Chairman of the Board of LILCO and asked that the company, O
25 as a good neighbor, I believe, as part of the good neighbor ALDERSON REPORTING COMPANY, INC.
684 1
policy, being a resident in this community, the company should
(])
2 undertake a complete design review and physical inspection.
3 I think County Executive referred to that and included the
('}
4 resolutions of the Legislative body which did the same.
e 5
So there is a great deal of activity going on and b
6 it is leading to climax in the near term and it is the County's R
7 hope tha LILCO will voluntarily undertake that design review 3
8 8
and inspection.
d c
9 In the event it doesn't then it is the legal position 10 of the County here that the remedy that the Board should order j
11 is that LILCO perform a complete design review and physical B
y 12 inspection.
c 13 O(~s Incidently, just for purposes of the Board's mg 14 edification, the County in a completely action has authorized E
15 the filing of a suit in Court to bring about several remedies, j
16 one of which is a judicial order that there be such a design w
b~
17 review and physical inspection also.
5 M
18 So I think all the activity is outside with respect P
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19 to any resolution in the near term, is outside the Hearing Room.
n 20 JUDGE BRENNER:
Yes, but as you indicated in the 21 QA/QC issues before us that we will be litigation, if you 72 prevail one of the potential remedies could be close to what s
23 you are also seeking outside the hearing process.
That wouldn't 24 take place until after the full litigation of the merits and 25 you may win, you may lose.
We don't know at this point.
ALDERSON REPORTING COMPANY, INC.
685 I
What I had in mind was a possible settlement
(])
2 conference and settlement may be the wrong word.
It may be 3
a partial stipulation conference, a better focusing in on what's
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4 involved conference.
If you get some of the relief that you e
5 are seeking anyway, that might move the need to litigate some A
N 6
of those contentions.
I don't know if that's possible at all.
R 7
From our point of view, before we've heard the testimony, this S
8 is very abstract but the parties are in a better position to N
d c
9 know right now than we are and we remain open to that possibility iog 10 If it's not possible, we will litigate it.
E g
11 MR. BROWN:
I think you are more than being abstract.
B j
12 JUDGE BRENNER:
Judge Morris reminds us that our 3
(-)
j 13 offer is not at all limited to QA/QC, although that was the v
l 14 focus,of your remarks.
2 15 MR. BROWN:
You are not at all being abstract.
You g
16 are being very unsightful to what you said in this extent.
w d
17 The letter from the County Executive and yesterday's h
18 resolution have very much put the spotlight on LILCO.
We were P
h 19 informed yesterday or County Officials were informed by one n
20 of LILCO's top management personnel, that a response to the 21 County Executive's letter would be forthcoming soon.
We were 22 in a lateral context informed that LILCO was going to submit 23 something to the NRC Staff on the 15th.
LILCO did not inform 24 us of that.
I believe that came through the Staff.
gx V
25 In any event, the burden is on LILCO now and I think ALDERSON REPORTING COMPANY, INC.
686 i
everyone at the County Offices is very much optimistic looking
(])
2 toward LILCO undertaking the design review and the physical 3
inspection which it was expected to do.
(])
4 JUDGE BRENNER:
Right.
g 5
MR. BROWN:
If so, I think it would terminate quite N
6 a bit of the quibbling in this forum.
R 7
MR. REVELY:
Judge--
M 8
8 JUDGE BRENNER:
Let me jump in and then I will come d
c 9
you, Mr. Revely, i
C 10 MR. REVELY:
I was going to say, Judge, my company g
11 remains very interested in this sort of settlement of discussions k
j 12 focussing for the narrowing discussions that you have just 5
r-)
j 13 mentioned, not simply in the QA context but in any context V
=
14 in which it seems feasible.
2 15 I think it is clear that we are about to litigate j
16 a number of matters in which it doesn't appear to us, the w
b' 17 parties are that far apart.
M 18 As to the QA situation, I don't share Mr. Brown's
=
19 characterization stipulation.
I don't think you can get into g
1 n
20 it here.
It is very difficult politically at the moment to 21 deal with.
Nonetheless, I think it could be affectively 22 addressed in a discussion partly on the record and partly C
23 off the record between the Board and the parties.
I"m certain 24 a number of other issues could be productively addressed.
()
25 You cannot do it unless the County is interested ALDERSON REPORTING COMPANY,INC.
687 1
in doing.
At the moment the County is not in so far as I know
(}
2 interested in doing it.
We are interested in doing it.
3 MR. BROWN:
I think it's important so that Mr;.Reveley
)
4 has our position to it so he can inform his own client of it.
e 5
The County is awaiting the response of LILCO and M
N 6
if wishes to set forth in its response a statement to the e
Rg 7
affect that there ought to be a taeeting or otherwise, the a
j 8
County is prepared to entertain it.
d
=
9 What the County could not and would not do would 10 be to compromise the absoluteness of the unified County position.
3 5
11 There is absolutely no minority view, there is no position j
12 other than that which was in the County Executive's statement /
5 13 position last night and the resolutions of the Board.
l 14 So I would say that if indeed LILCO has a proposal, 2
15 the sooner the better.
j 16 MR. REVELEY:
I think absoluteness was the appropriate W
d 17 adjective if it is indeed a word.
M 18 As far as the Company is concerned, as it presently E
19 understands the situation, it has been confronted with a number n
20 of non-negotiable demands, including collateral action that is 21 about to begin in a Court.
Nonetheless, it remains the 22 Company's view that reasonable people should be able to reach 23 a reasonable solution to what sort of additional by non-NRC, 24 non-LILCO people, should be made at Shoreham in order to put 25 to rest the concerns that do seem to exist.
ALDERSON REPORTING COMPANY,INC.
688 1
We think this Board could assist reasonable people
(])
2 in reaching a reasonable solution.
3 JUDGE BRENNER:
All right.
We will leave it at that 4
with these additional remarks by me.
e 5
Mr. Brown, you did distinguish properly between Uj 6
the matters outside this proceeding and those with which we Rg 7
are concerned.
When we first brought up this settlement 8
8 conference possibility and at that time we were also talking u
0 e
9 about focusing on QA/QC, although again the offer is not bg 10 exclusive to that issue, we said it would probably not be 3
5 11 usefull unless all the parties concerned agreed.
LILCO in S
d 12 that conference call did state they thought it would be useful.
Ea 13 In order to prevail before us, you are going to l
14 have to prevail on the litigation of the issues.
So our only 2
15 point is, will you need to litigate all those issues in order g
16 to get some or all of which you want as to the relief you are w
g 17 seeking with the context of those issues.
That's different 5
18 than the action you've got in Court and it's different than 5
E 19 the discussions your client may have with LILCO as to other R
20 matters.
We are going to be litigating from the point of 21 view of the testimony on the issues we have before us.
22 As I understood the situation, LILCO was willing 23 to have that settlement conference.
You weren't sure at that 24 point and you are still not sure because you have some other 25l matters which are still being pursued which are not directly ALDERSON REPORTING COMPANY, INC.
689 I
before us.
So our offer remains open.
()
2 MR. BROWN:
Well, the reason we are not sure, we 3
just don't have an answer from LILCO.
The communication went
()
4 from the Count Executive to the' Chairman of the Board and the 5
g Chairman of the Board has to properly respond in any way he 9
6 wishes and then we will know precisely where we stand.
R 7
JUDGE BRENNER:
The parties, I suggest, might A
8 8
find it useful to discuss the possibility of a settlement d
q 9
conference before us on any of the issues.
zo 10 As a minor example, I look quickly at the testimony E
11 on contention 17 (a), if that is going to be resolved which B
y 12 it looks like it might, it seems silly to have gone through 5a 13 the stage of having each party file testimony on it.
l 14 Now maybe it only got resolved because testimony E
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15 was iminent, I don't know and I don't mean to imply any view e
j 16 on that.
If there are other matters like that lurking, save e
17 yourself some effort and be able to better focus on that which e
18 you do have true disageements about.
E 19 g
That was our only point.
n 20 MR. BROWN:
We appreciate that.
21
()
23 24 fs U
25 ALDERSON REPORTING COMPANY, INC.
690 1
JUDGE BRENNER:
Unless there is something else that 1
([,')
2 the parties wish to bring up, the only matters that we have left 3
cannot be discussed until we have a break for purposes of the
(])
4 Board reading some of the filings and for purposes of some e
5 of the parties talking with each other.
Those matters are Mn]
6 the Motion to Compel, the Emergency Planning, and we want to R
7 read your filings on it, and presumably parties want to read 3
g 8
each other's filings on it, and may find it useful to discuss dd 9
the filings before we bring it up before.
10 In fact, considering requiring a half hour dis-E j
11 cussion either in the conference room right behind here, if a
j 12 it is available, or in this room, without the presence of the 5
{)
Board or anybody else, so that the parties can take a look 13 l
14 at the subjects on which the intervenors have indicated E
C 15 interest in the Emergency Planning to better determine the E
16 subject which can be taken up at a stage prior to taking up j
a d
17 the remainder of the. Emergency Planning issues, so we will 5
18 break and I will hear other matters.
We will break until 5[
19 1:30, but the parties would have to be back here at one to n
20 have that discussion, or earlier if you agree, and then we 21 will go back on the record at 1:30.
22 Are there any matters that can be discussed without pN, I
23,
the need for a break?
If so, we will take it up now.
24 I MR. LATHAM:
Perhaps, if I can, I didn't bring 25 it up to staff beforehand, it slipped through the cracks ALDERSON REPORTING COMPANY, INC.
691 1
in the last few weeks, and it turns out to be a poor pun C
2 because it deals with the "E$$AC Code and the fact that we 3
did receive on the 29th, I believe, the Crack Code from staff
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4 and it consisted as I knew it would of a substantial computer g
5 printout.
My question simply is, is there any explanation N.
6 for the terminology or assumptions, or what have you, in that R
8 7
Code.
I just simply want to state that at this time and A
g 8
perhaps we can take it up after lunch, but if I don't get d
d 9
the chance to talk about it if there is any additional explana-7:o 10 tory material about that, we would appreciate having it.
E g
11 JUDGE BRENNER:
All right, I don't know if this 3
y 12 has to come up before us, so why don't you have that discussion 5j 13 and if you still think you need it, you can come up before (ss) =
l 14 us and we will consider it.
2 15 HR. BORDENICK.
Judge Brenner, I have a question.
W=
y 16 I was wondering whether or not there was going to be any w
d 17 discussion today on any aspect of the combined SC-SOC 7b I
W
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18 Contention?
I know that the County is prepared to distribute
=
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19 any testimony to the parties during this break.
n 20 MR. LANPHER:
Your directive eariier--The testimony 21 is here, but I was going to wait until later according to your 22 directive.
23,
MR. BORDENICK:
Yes.
24 MR. LANPHER:
I have the testimony here but I was 25 going to wait for the break to pass it out to everyone.
ALDERSON REPORTING COMPANY, INC.
692 1
JUDGE BRENNER:
Is that your question, is the
()
2 testimony here?
3 MR. BORDENICK:
No, my question was whether either m
4 the Board or the parties. anticipate any discussion arising.
e 5
with respect to that contention.
Av 6
JUDGE BRENNER:
If not, what discussion do you N
7 anticipate?
El 8
MR. BORDENICK:
I was not.
I was just making a dd 9
general inquiry.
io 10 JUDGE BRENNER:
As I understand it, we are set on
=
g 11 that and that testimony will be heard first.
And there will B
j 12 be one panel of witnesses.
As I understand it, the witnesses
~c 13
)
were both of Suffolk County and SOC.
I don't know, but--
m 14 MR. BORDENICK:
The testimony is being filed on 2
15 behalf of Suffolk County and SOC, there are four witnesses E
y 16 sponsoring that point of submission.
M p
17 JUDGE BRENNER:
And that will be the first matter 5
18 that we will take up on May 4th.
E h
19 MR. ' BROWH : -.
I have a matter that I would like to n
20 bring up when you are finished with the preceeding one.
21 The first is that I would really like to alert the l
22 (m) parties and the Board to a legal issue which the County is 3
i 23 going to raise.
We intend to do it in briefs, but if the Board 24 3
wanted it in advance, I thought that by providing notice of it
~)
l 25 now, it might prove useful.
ALDERSON REPORTING COMPANY, INC.
i
693 1
The County raises a legal Constitutional issue of (3
i) 2 first impression; that namely is the application of the m
3 limitations of liability in the Price-Anderson Act on the
()
4 County in particular.
The County believes that an interpretation e
5 of the Price Anderson Act which would in any way extinguish 3
N 6
or stiltify the County's right to sue for damage for redress R
R 7
of damages for restitution would be an unconstitutional 3l 8
interpretation of that law.
O d
9 Secondly, the extinguishing of the County's rignt io 10 to sue because of the Price-Anderson Act which would preclude E
j 11 the County sueing would deprive the County of its right to B
j 12 file in Court for damages pursuant to a cause of action under 3
{}
13 State law, and that this would violate certain provisions of h
14 Article 3 of the Constitution.
2 15 The former argument would violate--or the former 5
y 16 application would violate Article 10.
What it boils down to e
d 17 in a practical sense--
5 M
18 JUDGE BRENNER:
Article 10?
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19 MR. BROWN:_
Article 10, which reserves to the--
n 20 what did I say?
21 JUDGE BRENNER:
Article 10.
22 MR. B ROWN :
The 10th Amendment, I am sorry.
Tne
(}
23 former being Article 3, the Judicion of the Constitution.
24 The problem boils down simply to this:
The County 25 is a property owner here.
If there were an accident and the ALDERSON REPORTING COMPANY, INC.
694 1
pool of monies available were such that there had to be a p)
(_
2 division of that pot so the County would not be fully compensated 3
but the County would be bound to seek the money to rectify the
()
4 problems through its own budgetary process or otherwise, the e
5 Supreme Court in the case of National League Cities vs. Usery b
6 laid down some principals that relate to this, and it is a R
7 matter that we would like to insure that the Board addresses M
8 8
as time lays that the Board would like.
d o;
9 JUDGE BRENNER:
You people have spent a lot of ink zo G
10 on a lot of pages explaining the meaning of that case.
Maybe 11 you can add to it.
B N
12 MR. BRONN:
We will add to it for sure.
The o
(~)T $
13 question is if the Board wanted this to be handled in some
=
14 way other than the customary process which is to get to that
{
15 at some point in the briefs.
We did want all the parties to
=
j 16 have opportunity to know of our intentions.
W 6
17 JUDGE BRENNER:
Well, you better start out by
{
18 explaining our jurisdiction if you file something, because as E
19 g
I understand it, your allegation is that they, the Price-Anderson n
20 Act, is unconstitutional.
21 MR. BROWN :
No.
What we seek is this agency 22 which is bound by that Act to interpret the Act as to how it 23,
applies in this case, and it is a matter of requirement that l
24 we exhaust our administrative remedies.
We would ask the 25 Board to make an interpretation of those provisions of the Act ALDERSON REPORTING COMPANY, INC.
695 1
as an amendment to the Atomic Energy Act.
()
2 JUDGE BRENNER:
Are you disagreeing with an 3
interpretation of the regulations?
()
4 MR. BROWN:
There is really nothing yet, so we e
5 are going at this for the first time to address the issue.
An h
6 JUDGE BRENNER:
Well, you can file your briefs R
7 with us.
We will look at it, but you better start out by s[
8 explaining our jurisdiction within the context of this dd 9
proceeding.
I am not saying we don't have any; I am just z'c 10 saying that as those questions come to mind, and we will look g
11 at it.
You might also explain the timeliness of raising the a
y 12 issue in the brief also.
5 13 MR. REVELEY:
Judge, I think it would be quite
[}
14 helpful if at the threshhold we engage both the jurisdictional 2
15 and the timeliness issues so.that in the event that the County 5
.]
16 does not prevail on either, we will of course vigorously oppose e
d 17 the jurisdictional issue, even if it is out of times grossly 5
{
18 out of time, so that the County can wait until it gets before P
{
19 a certain Court to write its brief.
n 20 JUDGE BRENNER:
Well,I am not going to prevent 21 the attorney from putting whatever they want to put in their 22 brief, however, beyond jurisdiction and timeliness I am directin g 23 that you address those points for our benefit so we can better 24 understand the argument.
After you file a brief, if other 25 !
parties want to move for the right to respond to portions of ALDERSON REPORTING COMPANY, INC.
\\
696 1
that brief in phases, we will consider that.
()
2 But you may put whatever you want in your brief, 3
Mr. Brown.
(m,)
4 MR. BROITN :
I understand that.
But what I don' t g
5 understand is any suggestion of timeliness.
This isn't a A
6 contention which is going to require an evidentiary hearing.
R 7
It is arguing a legal point which can be done customarily by s[
8 any party.in a brief.
It is a legal matter, and I don't d
c 9
understand notions that timeliness have any part of it, io 10 MR. BORDENICK:
Mr. Chairman, may I make one s
g 11 observation.
Counsel is free to file any papers he chooses k
j 12 to the Court, but he is looking for an interpretation of the his
{)
g 13 Commission's regulations.
I.suggest he file / papers with the j
14 office of General Counsel.
2 15 JUDGE BRENNER: Well, it wasn't clear to me whether g'
16 he is talking about whether he is going to argue that the w
d 17 regulations present an erroneous interpretation of the 5
M 18 statute, which makes the application of the statute, therefore, 5
{
19 unconstitutional, or whether his argument is going to be that n
20 the regulations don't precisely address it and there is room 21 for interpretation and the Commission, within the framework of 22 the statute and the regulation, in order to be constitutional 23 has to comply several ways.
So, we will wait for the briefs.
24 As to your last comment, Mr. Brown, there are O
25 '
legal issues and factual issues.
The Commission has long ALDERSON REPORTING COMPANY, INC.
697 1
recognized by type of contention in these cases, and there is 2
no distinction as to filing time for either one.
In fact, 3
recently, in the Commission's policies statement they reemphasized O
4 the need to reso1ve 1ege1 cone ntions even eer11er ehen fectue1 e
5 contention rather than later.
6 So, we will look at it, but I would like you to R
Cg 7
address it in your brief and also the jurisdiction.
If you s[
8 feel that there is multiple jurisdiction and you are filing a
c; 9
it here to assure that you are later in trouble for failing h
10 to exhaust remedies, I would appreciate it.
If the juris-
=
5 II dictional question indicates that also, if you are going to is f
I2 assert that we do have jurisdiction and at the same time take c
Oi' position that other forums might also have jurisdiction.
l 14 If you truly are only filing it before us to
{
15 defend against that possibility that you would candidly x
g 16 indicate it.
us 17 All right, if there are no further matters other x
{
18 than the matter indicated, we will take up this afternoon--
E I9 9
MR.BORDENICK:
Excuse me.
I have a schedule t
5 l
20 related matter, but we can handle it now or we can do it 21 this afternoon, whatever the Board prefers.
22 JUDGE BRENNER:
Well, why don't you tell me a 23 l little more about what the matter is without telling me 24 g
everything about it.
U
(
25 '
MR. BORDENICK:
All right.
I want to raise the ALDERSON REPORTING COMPANY, INC.
I
698 I
question of our schedule and I want to pursue a comment made g)
(-
2 by the County Executive last night that he continues to be 3
concerned that there may be the force of some arbitrary
(')
4 deadline in this case,.and I want to discuss that.
5 I want to make a specific request and perhaps j
6 subsequently file something on paper, but I think it is very e7 E
7 important that we get clear understanding, that everyone have a
8 8
a clear understanding of our problems, our needs, in order d
c; 9
to properly have the interest of the County represented here.
z o
g 10 JUDGE BRENNER:
You mean on a schedule established M
3 11 for the commencement of the hearings?
<k d
12 MR. BORDENICK:
We are not concerned with the 3m
(~} j 13 commencement.
We are concerned with something down the road
\\s m
E 14 a bit.
w 2
15 JUDGE BRENNER:
Emergency Planning schedule?
g 16 MR. BORDENICK:
No, no, not at all.
These discusions W
g 17 in the August period when we are presumably going tc be writing N
M 18 findings and at the same time--Well, it really isn'.t timely now
=
C 19 because it happens on the Emergency Preparedness matter, so--
g n
20 JUDGE BRENNER:
We may be in hearing in August l
21 anyway on these other matters as we were very careful to 22 indicate in our order on emergency planning, we are not assuming fS l
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we will necessarily be finished with all matters by the end 1
i 24 of July.
It was merely a departure point to make sure that
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ALDERSON REPORTING COMPANY, INC.
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issues during that planning stage, which is a matter that we
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I don't know if it will be August 3
or even later.
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MR. BROWN:
All right.
I think it is better.to
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hold off.
We have a concrete proposal that goes to the question 4
6 of the hiatus in the hearing.
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7 JUDGE BRENNER:
Have you disucssed it with the N
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other parties?
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9 MR. BROWN:
Pardon?
E 10 JUDGE BRENNER:
Have you discussed it with the E
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Yes, and there isn't--
3 13 JUDGE BRENNER:
There is disagreement?
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Well, there is agreement, but people g
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can we
.h I7 it off the record, and unless we/really have to come to the
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JUDGE BRENNER:
Why don't you give us the proposal I
l 20 without any arguement so that at least we will be aware of 21
.it over the break.
22 MR. BROWN:
Our bottom line proposal is this,
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23 there is going to be a week taken, I believe the ninth through 24 the 16th or so.
I 25 JUDGE BRENNER:
The 6th through the 16th.
ALDERSON REPORTING COMPANY, INC.
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MR. BROWN:
Sixth through the 16th.
We would 2
like to propose that from the 6th of August through the 3
last week in August there be a break in the proceeding, and O
4 the gurgoee of thee hreak is eo germie counse1 to work on 5
the many matters going on as well as to take stock of where j
6 the counsel and the consultants are, and to rest, frankly.
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Our consultants are strong about the country.
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8 We got a lot of consultants on security and four consultants d
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and then their staff. The other issues.
Everybody is working 10 o
on this, and we are going to ask for what is typical kind of E
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12 to preserving the ability of the counsel and the witnesses S
13 especially to represent the County properly and accqtably l
14 to the need of people who are engaged in family life that g
15 they have some free time in the summer.
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16 JUDGE BRENNER:
Are you making that proposal as 17 regardless of whether we completed the litigation of these i
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18 nonemergency planning matters?
E I9 MR. BROWN:
Yes.
It would customarily be done.
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20 JUDGE BRENNER:
I guess I don't understand what 21 customarily means.
22 MR. BROWN:
It is taking a vacation in August or 23 ;
July or August or some other period, and since we are already 24 having a week off, as I understood it from earlier conversation, 25 Judge Morris had a prearranged vacation schedule.
I ALDERSON REPORTING COMPANY, INC.
l
701 1
JUDGE BRENNER:
Yes.
(_)
2 MR. BRONN:
And the fact is that people here have 3
certain family requirements and obligations that were pre-()
4 arranged, too, and we have a lot of alternative ideas on how e
5 hearing schedules will.not be impaired by this.
I wonet argue h
6 it so I won't go into it.
R 7
JUDGE BRENNER:
We will come back to it this s[
8 af ternoon.
we indicated the August break well in advance, so dd 9
that you could schedule vacations during that break if you 10 wanted to, and that was the purpose for giving you that long E
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12 We will come back to it this afternoon.
We don't 5
13
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know when we will complete this first phase, and we are not l
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MR. BROWN:
Maybe when we discuss it we can help w
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17 you be inclined in that direction.
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18 JUDGE BRENNER:
All right.
h 19 MR. LATHAM:
Judge Brenner, it isn't clear to me R
20 why we are breaking for two hours.
I think that is the 2j understanding, or two and a half hours.
One-thirty?
22 Okay, I just wondered if we might push that up a bit in terms of time or whatever we are going to run into 23 ;
24 for time this afternoon, because I am going to want to discuss.
7sO 25 '
JUDGE BRENNER:
All right.
We will come back at ALDERSON REPORTING COMPANY. INC.
702 I
or the Board will come back at.one o' clock and the parties.
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w111 neve ee come seck et 12:30 to seve eset disceesien ee
,3 to the Emergency Planning issues that are contained in the
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gereies 1111 nee, eo me w111 caog e se1r nour ore.
veur goine 5
j is well taken.
We want to adjourn as close to four as possible 0
today.
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JUDGE BRENNER:
Back on the record.
All right.
2 Take your seats.
I have a handwritten note that the parties 3
have agreed on the change in order for the filing of testimony
-h 4
for the litigation of the testimony that has been filed to
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adjust consistent with our discussion this morning with respect N
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6 to Suffolk County Contention No.
4, on Waten:.Hammar..:, so I will G
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8, We-wil start as you all know with the testimony E
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9
.by suffolk County and SOC on Contention 7b.
We will.then
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B 10 take.up Suffolk County Contention No. 17, then SOC 19(j).
11 Thereafter in this order, Suffolk County 11.
, y _12 Suffolk County 10.
'E n d 13 Suffolk County 5.
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'2 15 Suffolk County 4.
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Suffolk County 9.
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Does everybody agree with that?
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All right.
We will take up the question of the i
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20 scheduling of the hearing after the initial phase and the 21 Eraergency Planning considerations last, because I think the l
22 other matters should be very brief that carried over to this nV 23 afternoon.
24)
Where do we stand on the Motion to Compel?
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MR. LATHAM:
Judge Brenner, I think that we have ALDERSON REPORTING COMPANY, INC.
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704 1
resolved that.
Let me just state that I think there are four 2
items that LILCO will be getting to SOC, and with,one.. exception 3
to the other parties in the near future.
O 4
oo vo= weme me to eeete them for the recora suet y
5 briefly?
6 On 1.150, the right guide, that right guide, there R
7 is a two lined preservic6-report which is referenced, which n
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would solve our concerns to be sent to MHB.
The two studies
- .5:i 9
which LILCO states are underway with regard to Reg. 126 and Wcy 10 129, and Contention 19(b) will be made available and in hand i5 h
11 next Tuesday, or--
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12 MR. EARLEY:
We will provide that answer for you.
25 Oi'
't i" e'i i "" der "'"dr-Taev ^re c =i"S-mg 14 MR. LATHAM:
Okay.
Can you--I thought there was P.
15 some kind of study or documents or reports that were being gj 16 introduced that you were doing that for?
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17 MR. EARLEY:
No, we are just going to go into more 18 detail on those.
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l 19 MR. LATHAM:
Okay.
Well, assuming that answers 20 our concerns, those are to be made available on next Tuesday, 21 and then with regard to Reg. Guide 1.100, they are going to 22 send us, if we do not already have this, the referenced section 23,
of the standard review plan.
They will send that to us to 24 see if that answers our concerns.
I represent that it does.
25 j I think we have gone through all of the other matters, things ALDERSON REPORTING COMPANY, INC.
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705 1
that have already been taken care of.
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2 JUDGE BRENNER:
All right.
Good.
I am pleased 3
to hear that, as we hinted broadly this morning.
I would like
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4 to inquire, not to belabor it,"but did you disucss this with e
5 LILCO before you made the Motion ot Compel, because we have E9 6
the standing procedure that the parties should come to a R
8 7
point where there is absolutely no chance of resolving it M
8 8
themselves, then a Motion to Compel should be filed?
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9 MR. LATHAM:
I realize that.
For a couple of iog 10 practical reason we could not do that.
The answers which to 3
3 11 my mind appeared to be grossly inadequate were not made
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12 available in time for him to review when he was avialable 3c 13 last week, and we have simply not been able to meet with him y
14 on that, so that was what I was just protecting us--
2 15 JUDGE BRENNER:
Well, I understand that, but in Y
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17 in discussing it among themselves, because it took some of 18 our time to prepare for possible arguement when it turned out 5
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19 to be needless, although not much time in this case.
I am n
20 worried about that in the future.
21 In addition, as we mentioned at least once, perhaps 22 it was on a conference call, our discovery schedule had not i ()
23 ;
for motions to compel after the answers.
They provided for 24 motions to compel where there were objections, but not where 25 you were unhappy with the answer because there are different ALDERSON REPORTING COMPANY, INC.
706 '
I interpretations of what a proper answer consists of.
We r) 2 haven't provided a schedule, but we did indicate that we
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3 expected them to be very promptly filed, and in fact at one
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4 point when this came up we commended the County for doing that.
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You, I guess, explained why there was a lag in this and 6
case, and normally/in the future a lag between.approximately R
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April 2nd receipt date, and then over ten days / file a motion s
8 8
to compel when you are not happy with the answers you have d
9 received would be too long and---
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There are a number of reasons why E
Il that I won't go into.
B N
I2 JUDGE BRENUER:
All right.
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The contention does have a tortured
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15 JUDGE BRENNER:
All right.
I say, I raise this x
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in the spirit of the future rather than this particular motion.
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17 I would like to take up the security contentions
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18 at this time.
I believe that we can discuss everything we P
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need to discuss today in a manner so that we do not have to n
20 get into protected safeguards, information.
We have received 21 two versions of the Suffolk County contentions.
One version 22 x
does contain safeguards information; at least I believe it s
23 ;
does.
We may disagree.
At this point we haven't made the 24 determination ourselves, and the County has also filed a 25 what I guess is a sanitized version of Suffolk County Security ALDERSON REPORTING COMPANY, INC.
1 l
i
707 1
Contentions.
The contentions are identical on both documents.
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2 Perhaps that is unfortunate, but the shorter three page version 3
is the version that appears to the Board not to disclose any
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4 protected information.
I have been informed that the parties e
5 share that belief, and I would like to get that on the record E
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if that is the case.
Staff, would you or your people have a R
7 chance to look at the sanitized version?
El 8
MR. BORDENICK:
They have and your assumption is correct-dd 9
The shorter version does not reveal any safeguards information.
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10 JUDGE BRENNER:
I will ask LILCO the same question.
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11 MR. ELLIS:
That is true with respect to LILCO's B
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1.
a 13 JUDGE BRENNER:
All right.
In that case I will
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l 14 take Mr. Lanpher up on his offer to file the shorter version 2
15 in the proceeding on the normal service list so that it will y
16 be docketed in the right places.
If you could add a word or w
g 17 two to say this is the sanitized version, maybe you could come 18 up with a better word. You have it all typed already, so maybe 5
E 19 you could write it in by hand.
Whatever suits you.
File it 20 at your convenience, hopefully next week.
1 21 MR. LANPHER:
would it be all right to just put it 22 on a cover letter memorializing it?
23 JUDGE BRENNER:
I am worried about the fact that 24ll a cover letter might get separated.
b 25 ;
t1R. LANPHER:
Fine.
We will do that with appropriate l
ALDERSON REPORTING COMPANY, INC.
708
, or'ds on it.
The reason we didn't is that we didn't stamp this 1
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3 JUDGE BRENNER:
Right.
Somebody might see this
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4 and wonder if it contains information or not with the way it e
5 is captioned now who was not privy to our discussion on the E
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6 record here.
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As I understand it, except for one subpart which
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object to the adminisbility of these contentions; is that z
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That is correct.
We think, Judge, that j
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13
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out to be arguments against the regulations, questions of law 14 rather than issues of fact.
At this time we would proceed 2
15 with them as they are.
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Well, if you do believe that they w
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We would proceed from the point of admissability to setting n
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the testimony filing schedule on it.
21 MR. ELLIS:
I think that in the discussions 22 pg yesterday with Mr. Lanpher, I think it was his representation G
23 that they intended to be nonchallenges to the regulations, 24 is that correct?
25 '
MR. LANPHER:
That is right.
I don't believe that ALDERSON REPORTING COMPANY, INC.
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any of them challenge the regulations as is quite usual at
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It is an interpretation of the regulations.
3 That is something that we can address the Board on.
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4 JUDGE BRENNER:
Tell me if this fairly characterizes e
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On their face it is possible, depending upon 3
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the direction of the testimony, that they might challenge R
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challenge the regulation, and therefore you do not object at 5g 10 this time and we can proceed to the filing of testimony, but E
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Judge, I think that is a fair character-g 15 ization, except that I think Mr. Lanpher has represented to e
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19 JUDGE BRENNER:
All right.
Obviously, you may n
20 disagree once you see the testimony.
Mr. Bordenick, what is 21 the staff's position on admissibility?
l 22 MR. BORDENICK:
With the one exception that was
(-)g 23 noted, we have no objection to the admissibility and with 24 respect to the question of whether or not they challenge the 25 [
regulations, I would agree with the statement that the Board i
ALDERSON REPORTING COMPANY,INC.
l
710
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1 Board made that I think it will depend upon the direction that
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I think in large part the problem is that 3
some of the contention goes to interpretation of regulations
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6 at this point.
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7 JUDGE BRENNER:
And the staff is prepared to go a
8 8
ahead and prepare testimony on the contention?
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9 MR. BORDENICK:
Yes.
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10 JUDGE BRENNER:
With the one exception?
II MR. DORDENICK:
Yes.
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I2 JUDGE BRENNER:
The Board right now has three copies 3
13
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one copy each, of the version that may contain the safeguard l
14 information, obviously probably does contain safegaurds infor-g 15 mation.
The other versions I take it are in LILCO's possession m
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I7 MR. ELLIS:
That is true.
I think we have one.
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18 JUDGE BRENNER:
Let's clear counsel table for p
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everyone who has not been approved for access to the safeguards n
20 information just for a moment.
21 of course I am going to ask that those who do have 22
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access have that version in front of them and give Mr. Lanpher 1
23 ;
copies and the table be cleared and Mr. Brown--you can stay.
t 24
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All right the one portion with which there is I
25 a dispute with respect to admissibility appears within the ALDERSON REPORTING COMPANY, INC.
711 1
Contention No. 2 addendum.
At the top of the second page of
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2 that addendum, a two page addendum; is that correct?
It is 3
that top paragraph over which there is a dispute as to
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4 admissibility.
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MR. BORDENICK:
That is correct.
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6 JUDGE BRENNER:
Offhand, and I don't know if I am R
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see anything in that paragraph that we couldn't read into the d
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record.
Does anybody disagree?
Is it a close question?
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11 and the title of the analysis.
Now, as I recall previously, B
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13 record; hopefully not by inadvertence.
h 14 MR. ELLIS:
That is correct.
2 15 JUDGE BRENNER:
Am I also correct that it was not s
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Acceptably, not by accident.
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18 JUDGE BRENNER:
Well, in listening to the staff, E
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how about the Chapter No. of the Security Plan?
If it is n
20 a close question, tell me that also.
21 MR. BORDENICK:
I don't believe that we have any 22
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MR. BRONN:
I would like to say that to a sophisticatad 24 reader, these words would have meaning beyond what is suggested 25 l on the face of these letters; that is, particularly the last ALDERSON REPORTING COMPANY, INC.
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three lines say something important, but only to a very
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3 MR. BORDENICK:
How do you define sophisticated?
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4 MR. BROWN:
Someon'e who knows what the analysis 5
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6 drawn, but the words themselves aren't a problem.
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JUDGE BRENNER:
You mean somebody who knows the s
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particular analysis who has access.
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9 MR. B ROWN :
Well, that particular thing has been zo h
10 relied on.
It is supposed to confirm a certain thing and
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JUDGE BRENNER:
The first sentence is okay in your 16 W
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5 18 MR. BROWN:
Except for the first two words again.
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And the second word is of more significance.
M 20 JUDGE BRENNER:
I just don't see where that discloses 21 anything, Mr. Brown.
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22 MR. BORDENICK:
I think I would agree with Mr.
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23 Brown.
It is a close question at least.
t 24 JUDGE BRENNER:
ON the first two words?
25 MR. BORDENICK:
ON the first two words--umm.
Are ALDERSON REPORTING COMPANY,INC.
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we taling about the last sentence?
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2 JUDGE BRENNER:
No, I don't.
Do you agree that 3
it is a close question as to the last sentence, if I understood
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4 your comment.
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MR. BORDENICK:
Right.
6 JUDGE BRENNER:
Then..I followed up and asked about R
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see how.
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10 MR. BORDENICK:
We would agree with that also.
11 That might be a problem.
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12 JUDGE BRENNER:
It would be a problem?
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13 MR. BORDENICK:
It's close.
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That is what I asked you the first 2
15 time.
j 16 MR. BORDENCCK:
On reflection, we would agree W
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It is a close question.
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18 JUDGE BRENNER:
Mr. Bordenick, I am having some E
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I can hear you fairly well.
I hope you n
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2I MR. BORDENICK:
I was merely indicating that on 22 reflection, after listening to Mr. Brown, we had agreed that 23 it was at least a close question.
24 JUDGE BRENNER:
All right.
l 25 MR. BORDENICK:
If we were going to err, I think ALDERSON REPORTING COMPANY. INC.
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714 1
we should---
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2 JUDGE BRENNER:
Okay, let me see if I can try it.
3 MR. BRODENICK:
Err on the side of caution.
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4 JUDGE BRENNER:
Rather thai read it into the record e
5 then, let me see if I can try it this way:
as part of one 6
of its contentions, Suffolk County wants to file, wants to 7
have. the right to file further matters af ter an opportunity a
8 for a more detailed review of some of the protected information.
dd 9
Is that correct?
b b
10 MR.' LIANPIIER:
Specifically one?
3 5
11 JUDGE BRENNER:
- Yes, h
d 12 MR.'." LANPHER:
Specifically one document which is E
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(_)g 14 JUDGE BRENNER:
All right.
What was the problem 2
15 in not filing it now.
g 16 MR. LANPHEN: The problem in not filing; you issued m
d 17 an order, I believe, last week, granting us access to this E
18 material.
We had hoped very much that it would have access
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LILCO refused to produce 21 the document down there, depsite the fact that we asked them 22 to and the staff asked them to.
We frankly were too busy
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with the rest of the schedule to be able to come up here before i
24 yesterday to review that document.
We came up yesterday and O-25 i in fact we spent all day up here yesterday in meetings and ALDERSON REPORTING COMPANY,INC.
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and various things, and yesterday was the first opportunity to I
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It is about an inch thick.
It may be 3
more than aninch thick, and I simply can't review something O
4 that important in that limited time.
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5 MR. BROWN:
There is another matter that goes to E
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6 it, too.
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JUDGE BRENNER:
Well, I want to keep one counsel s]
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It's essential that you add something now?
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Maybe that shortcuts what you were going to say.
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11 MR. BROWN:
I would like to respond to this because is
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12 I know something that Mr. Lanpher doesn't.
5 13 JUDGE BRENNER:
All right.
14 MR. BROWN :
The expert whom we have retained with C
15 particular expertise in this matter won't be available probably 5
y 16 for a full week to look at this, and it might be a i'ittle as ti 17 longer.
He is from Santa Monica, California, the Rand Corp.
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18 Dr. Brian Jenkins, and his schedule which was arranged along i:"
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before he was retained by us precludes him from providing n
20 assistance until--
21 JUDGE BRENNER:
I guess I hadn't heard that name 22 before.
He is not even a person listed to have access, is ine?
O'v 23 l MR. BROWN:
We are retaining additional people, 24 none of whom has looked at anything, but we are in fact O
'J 25 l retaining Dr. Jenkins.
We are obtaining Mr. Richard White, l
ALDERSON REPORTING COMPANY, INC.
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a former Director of investigation in Sacramento, and two
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the County where they are certainly going to be retained.
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5 submitted just as soon as the contractural arrangements A
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are secured.
All of these individuals are not needed for the R
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I think of only one, Dr. Jenkins.
8 8
JUDGE BRENNER:
Why is he not available?
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9 MR. BROWN:
He is a Program Director at Rand and 7:og 10 he has got previous engagements.
He is going to be in Washington j
11 I think he told me the 23rd, and that will be his first chance.
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12 JUDGE BRENNER:
Uas.he available%1ast week?.
.I think 3
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Where was he last week?
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Well, he wasn't retained, or didn't E
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JUDGE BRENNER:
I don't have the order in front 2
of me, although I can pull it out, I do agree that as to this 3
one analysis, the order compelling that it be turned over--r O
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That was rather recent.
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23 25 ALDERSON REPORTING COMPANY, INC.
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bility of experts, we extended the discovery several times by
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2 stipulation on this issue because everybody agreed, at least 3
the Board with the County, that it made sense to have discovery
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4 before the filing of the contentions rather than the other way e
5 around because of the nature of the subject matter and the U
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catch 22 that you couldn't get at that contentions here until R
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you went into the discovery.
M 8
8 We're not going to keep extending for the convenience d
d 9
of a particular expert.
What if we gave you two more weeks as 7:o G
10 to this one aspect.
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11 MR. BROWN:
No problem c
12 JUDGE BRENNER:
Mr. Reveley, what would LILCO's--
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Mr. Ellis.
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Mr. Ellis?
2 15 MR. ELLIS:
Judge, today is the first time I've y
16 heard the name Mr. Jenkins or two other unnamed experts.
e d
17 Yesterday for the first time we were told about an additional 5
18 expert and at this time we were told that, we were sitting
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19 in a room with this particular study in front of the expert 5
20 who has been designated in this area for, I believe, about a 21 year.
I think that it comes too late.
22 JUDGE BRENNER:
Do you mean Mr. Goldsmith?
23 MR. ELLIS:
Mr. Goldsmith.
It comes too late and 24 I think it's an effort to delay, it comes too late to name 25l three additional new experts at this time in addition to the I
ALDERSON REPORTING COMPANY, INC.
719 1
fact that they could have come up last week to see this particu-
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2 lar study.
As between our taking the study down to Bethesda 3
and their coming up to see the study at LILCO, it seems to me 4
that the burden should fall on them to come and see the study e
5 where it is located.
There was not a copy in Washington.
3 N
6 JUDGE BRENNER:
All right, but it's correct that Rg 7
they haven't had much time with this study regardless of the s
8 8
location?
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MR. ELLIS:
It's correct that they have only had i
h 10 the time since the Board issued its order that they could see E
11 it.
They've had the time.
j 12 JUDGE BRENNER:
Do you recall what date that was?
Ed 13 MR. ELLIS:
Yes, sir.
I think it was last week.
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14 JUDGE BRENNER:
At the rate that we have been going, 2
15 that must have been five orders ago.
g 16 MR. ELLIS:
I have that order.
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17 JUDGE BRENNER:
AS I recall, a licensee turned it E
18 over after--We didn't actually order that it be turned over.
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19 We were contemplating the matter and then it was resolved.
Is g
n 20 that correct?
21 MR. ELLIS:
I think it was agreed that we would do l
22 it but it did appear in the Board's order so that we turned I
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24 JUDGE BRENNER:
If there is a problem with naming
()
25 l that analysis now, I'm distressed to hear it because it was ALDERSON REPORTING COMPANY, INC.
72'O 1
named in the filings before us and we named it in the order.
()
2 MR. ELLIS:
I'm just being abundantly cautious.
3 JUDGE BRENNER:
No, we've got into this mode.
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4 MR. LANPHER:
Judge Brenner, I understand that e
5 there is no problem in naming the analysis, it is some of the 3n 3
6 adjectives that go around use of the analysis that there was R
7 some concern about.
3 8
JUDGE BRENNER:
So for the sake of the record then, d
9 9
we are talking about the EASI Analysis.
zo g
10 So point, Mr. Ellis is, aside from your argument 3
l 11 as to changing experts or going to additional experts at this k
j 12 time, even if they had not raised that argument and maybe if 5
g 13 Mr. Brown weakened this case with the additional argument, 14 the first argument of Mr. Lanpher's would still be appropriate.
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16 g
thick document, complicated by the need to come here to look e
6 17 at it.
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18 MR. ELLIS:
I think that had they responded 19 g
promptly when the Board issued its order and have Mr. Goldsmith n
20 who has been designated for a year come and look at it, they 21 would have had ample time.
22 i
n MR. LANPHER:
Judge Brenner, on a review of the
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23 ;
filings that we made yesterday and today, you will see that 24 Mr. Goldsmith was engaged in preparing I think, at least four
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25 '
different sets of testimony.
To suggest that Mr. Goldsmith ALDERSON REPORTING COMPANY, INC.
i
721' I
can do all these things, I think it's just quite unfair.
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2 JUDGE BRENNER:
He was busy.
We'll take notice of 3
that.
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4 Does Staff have a position on the possibility of
=
5 granting the County two more weeks to file their contentions M9 6
on this matter?
Now, I would want it filed in this same R
7 fashion.
That is, the parties will have discussed it before 3
8 8
it's filed so any disagreements, minor disagreements as to dd 9
wording and so on will be resolved before we see it.
ioy 10 MR. LANPHER:
Judge Brenner, I think we have a g
11 very minor point here.
The point only is that I don't think B
y 12 they have any objection to the contention except to this one 5
13 gg sentence and the amendment to the contention would be to add U
h 14 further specificity.
2 15 JUDGE BRENNER:
Right.
I just asked the Staff s
y 16 whether they'd have an objection to that.
M N
17 MR. BORDEMICK:
No objection.
M 18 JUDGE BRENNER:
My point that I mentioned so that
=
19 g
the Staff and all the parties understand is that everybody n
20 will have read this for the specification before you file it 21 so we don't have to get involved in any discussion as to whether 22 or not they understand what you are trying to say or minor 23,
word modifications or so on.
Exactly in the fashion which this l
24 filing today was made in which the Board appreciates the parties O
t 25 working together on.
l ALDERSON REPORTING COMPANY. INC.
722 1
All right, you've got the two weeks.
()
2 MR. LANPHER:
Judge Brenner, I would like to make 3
a request.
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4 JUDGE BRENNER:
Let's get the date down.
e 5
MR. LANPHER:
That would be the 28th.
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6 JUDGE BRENNER:
We haven't discussed the matter R
7 of filing it.
It was easy when we were in person.
8 MR. LANPHER:
If I may make a suggestion, Judge d
d 9
Brenner, it goes along with the request I was going to make.
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10 We would attempt to have to typed as we did the original portion E
j 11 of this in Mr. Kasun's Office in Willste Building in Silver B
g 12 Spring and deliver it to the NRC Staff which can deliver it 3g 13 to the Board.
Os m
mg 14 Mr. Kasun indicates that they do have a method g
15 of mailing safeguards information or transmitting safeguard
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16 g
informations to licensees.
So I think the NRC Staff has the W
d 17 capability and we would propose just delivering it to the 5
5 18 Staff right in their own Offices.
19 g
I would like to bring up the additional matter n
l 20 that--
21 JUDGE BRENNER:
I want to ask the Staff, is that 22 acceptable to the Staff?
ss 23 MR. BORDEMICK:
That's generally acceptable to the j
24 Staff.
We'll be delighted to accomodate counting that regard.
25 I think there may be some timing delays though involved in that i
ALDERSON REPORTING COMPANY, INC.
723 1
sort of thing.
Particularly to the Applicant, I guess that
{
2 would be the only delays.
We could probably make arrangements 3
to obviate that.
4 So my answer is, no problem.
e 5
JUDGE BRENNER:
All right.
Let's give the County b
6 the responsibility of getting it to the Staff on the 28th and 7
then allowing it one more day to come to the Board at least M
8 8
and then to LILCO as soon as possible.
d d
9 All right, Mr. Lanpher.
io 10 MR. LANPHER:
Judge Brenner, I would suggest just 3
5 11 two days.
Two weeks from today would be a Wednesday.
That
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12 would carry us to Friday.
We will try to get it prior to that.
3c CE) :d 13 JUDGE BRENNER:
Well, if I get it late on Friday, E
14 I'm not going to be able to read it that week before coming w
2 15 down here on the 4th.
That's my problem.
j 16 MR. BORDEMICK:
We would certainly be available M
M 17 to meet anytime prior to that.
5 18 JUDGE BRENNER:
I'm going to need it first thing
=
19 on the morning of the 30th at the latest.
5 20 MR. ELLIS:
No problem.
21 MR. BORDEMICK:
No problem.
22 JUDGE BRENNER:
All right.
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l 23 MR. LANPHER:
Judge Brenner, I would like to make l
l 24 a request.
The data that we've been referring to as well as 25 the other data which are in the confirmatory order which you ALDERSON REPORTING COMPANY, INC.
724 l
1 signed last week, are essential to our preparation of this
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2 matter.
We would like very much to have the procedures which 3
are referenced in your orders and the EASI Analysis which are
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4 referenced in the order and which we have been discussing g
5 available at the Willste Building in Silver Springs.
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6 My understanding, Judge Brenner, is that the only G
7 other litigated security case where this is what was done, Ml 8
that is the Diablo Canyon Case where such materials were made dd 9
available to the interveners in a secure location at the z'o 10 Willste Building in Silver Springs.
So we would ask that the Il same be done in this case also.
B j
12 JUDGE BRENNER:
All right.
I'll here from the Ed 13
)
Staff and LILCO on that request.
l 14 MR. BORDEMICK:
The documents in question are not 2
15 filed with the Staff.
We have no problem in accomodating the 16 g
County in providing the security for the documents.
I think W
17 it's a question of what LILCO wants to do.
I don't think the E
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18 Staff is in a position to force LILCO to do it.
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19 JUDGE BRENNER:
The documents are besides the EASI n
20 Analysis.
Can we discuss it very generally?
21 MR. LANPHER:
It's the security plan procedures.
22 JUDGE BRENNER:
Hasn't the Staff possession of that
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23 for their review?
24 MR. BORDEMICK :
They may be available at the Staff's l
25 Regional Office which, of course, is in a location other than ALDERSON REPORTING COMPANY, INC.
L725 1
metropolitan Washington area.
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2 JUDGE BRENNER:
I went off on a tangent.
I just 3
wondered how it is the Staff could perform the review without it.
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4 MR. BORDEMICK:
The Regulations only require that e
5 they be available at the site.
b 6
MR. LANPHER:
They, of course, are at the site--
R 7
JUDGE BRENNER:
Well, he doesn't want to attempt nj 8
to travel back and forth as we go into a tight schedule.
Is d
9 9
there a practical problem or a legal problem?
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10 MR. LANPHER:
I think there is a practical transpor-E 11 tation security problem.
I'm just not sure how they get B
j 12 safeguard material back and forth, whether members of the Staff 5
rs 13 carry it.
We would be glad to cooperate to expedite things
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m 14 and get things moving as quickly as possible.
I'n just not 5
2 15 familiar with the procedures that would be used for transporting 16 j
the safeguarded material.
M 17 JUDGE BRENNER:
Well, I didn't want it to leave the
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18 site.
Is that the problem that you would maintain only one E
19 g
copy of it?
n 20 MR. ELLIS:
Well, we would make a copy of the 21 material and transport.
22 JUDGE BRENNER:
It doesn't sound like an unsurmount-23 able problem.
24 MR. ELLIS:
No.
I'm just not familiar with the 25 procedures for transporting it.
Does the Staff have any input?
ALDERSON REPORTING COMPANY, INC.
4 726 j
MR. BORDEMICK:
There are procedures and we would
(])
2 be delighted to talk to LILCO about them.
I think it can be 3
done if they want to do it.
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4 MR. ELLIS:
That's fine.
We'll be glad to do it.
e 5
JUDGE BRENNER:
I understood there was a refusal.
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Let's get beyond it.
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MR. BROWN:
I have a matter that's far beyond this.
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8 JUDGE BRENNER:
Let me conclude it with the order.
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9 It's ordered that--
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10 MR. ELLIS:
Judge, may I have a moment to confer?
3 5
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JUDGE BRENNER:
All right.
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12 MR. ELLIS:
I think the practical problem is that 3cd 13 LILCO will have to take the documents down themselves.
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14 JUDGE BRENNER:
I don't want to get into the w
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15 Practicalities of it unless it is so impractical as to be E
g' 16 impossible.
I'm frankly not interested to be blunt about it W
as long as there is no legal problem and we are not talking d
17 18 about 10,000 pages or anything of that nature.
E 19 MR. RB52EY:
Judge, we will get it down there and 8n 20 send them a bill for the airplane which I'm sure they will 21 greatfully pay.
22 MR. BROWN:
I'm sure that we won't pay the bill 23 for the airplane.
The same way that the materials got to 24 King of Prusia, they can get to Washington.
O 25 !
JUDGE BRENNER:
I'm going to cut it off right now.
ALDERSON REPORTING COMPANY, INC.
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727 1
Unless LILCo comes back ans shows good cause otherwise, which
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we haven't contemplated, that is a safeguard's requirement
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3 why it can't be done that we are overlooking or something like 4
that, we'll order that it be made available very promptly.
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Do I need to set a date?
Can we do it in a matter An d
6 f--by April the 20th, next Tuesday.
e 7
Anything else on security issues?
8 MR. BROWN:
Yes.
This is related.
It doesn't go dd 9
specifically to this contention but it's a central part of the 7:
h 10 issue.
I noticed that Mr. Frank Jones who is Deputy County a
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Executive is here and this is a matter I discussed with him.
o 12 The County has to provide various off site services in the 3c 13 event of an event which comes within the purview of the various (1) d E
14 plans and procedures.
There has to be training, there has to w
2 15 be understanding of precisely what is involved by the Official B.
16 done by the County.
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17 Therefore, the County is going to have to be the M
18 County Police Officials, Security Officials, and indeed people
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5 19 in the County Executive Office, are going to have to be dealing 8n 20 with LILCO to assure that there is training properly done, that 21 there is proper manpower, that there is an understanding of 22 the people on the police force and elsewhere in the County
~
23 as to what has to be done, that the appropriations are available 24 for the proper equipment and so on.
All the responsibilities
()
25 i that would go to police response and other County support.
ALDERSON REPORTING COMPANY,INC.
728 W
1 Therefore, there will have to be a lot of discussion concerning
()
2 the plant.
It will be directly with LILCO outside the context 3
of this proceeding and yet, I would like to raise the issue
()
4 whether that means for County Officials to deal with LILCO e
5 on it, those officials have to be cleared by this Board to see 343 6
the plan, the procedures and otherwise, and what kinds of e
R 7
parameters and guidance the Board wants to give us.
We would 3l 8
appreciate whenever the Board is able to convey that.
dd 9
JUDGE BRENNER:
Well, I'm not prepared now.
You io 10 caught me cold with that possibility.
I suggest the parties E
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11 discuss it among themselves and give us their views.
You B
y 12 raised a good point but I don't think we have to deal with it 5
C) y 13 here today.
I would like to move on and stay with the matters f^
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14 that t.'e have to litigate rather than digress in this fashion.
2 15 Have the parties discussed a testimony filing date g'
16 on the security contentions?
M
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No, we haven't.
We need discovery
^
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18 pursuant to these contentions.
However, once they are in fact 5
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19 admitted--
n 20 JUDGE BRENNER:
I thought we had discovery?
21 MR. BROWN:
We had discovery for purposes of framing l
22
)
the contentions but we have not had any discovery pursuant to 23 the contentions.
We have extensive information that we would 24 like both of Staff, which we have chatted with the Staff 1
25 generally about a lot of this and in fact, have told the Staff ALDERSON REPORTING COMPANY, INC.
729 1
we are going to provide interrogatories to them on certain
(])
2 matters where there are no documents.
We have an extensive 3
amount of questions to request from LILCO as well.
(])
4 JUDGE BRENNER:
I'm not inclined to permit inter-e 5
rogatories on a security plan.
It just gets too unweildy to En 6
have protected information back and forth on discovery.
It R
7 should essentially be documentary discovery.
If you have a K
8 8
need for a deposition, we will consider that and have an in dd 9
camera depostion.
There are informal discovery procedures 7:o 10 which work much better in this matter and you should be able E
g 11 to sit down with Counsel for the other side and the technical B
j 12 people on the other sides, with your experts, and then ask 5
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13 them the questions.
Then if you can't get information that m
l 14 you feel you need in that fashion, you can take a deposition 2
15 limited to the points you couldn't get informally.
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16 Unless you come back to us for reconsideration w
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17 with a reason that I am not contemplating, I don't see where 5
M 18 you would be deprived of any information on discovery through
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these other means without interrogatories.
n 20 As far as documentary discovery goes, I assumed 21 we were giving you all this time so that that would be completed.
22 So I am perplexed to hear that you are still contemplating 23 documentary discovery.
24 MR. BROWN:
There are things that we want to pursue
-)
x) 25 in order to determine the bases why LILCO chose what LILCO ALDERSON REPORTING COMPANY, INC.
730 1
chose and why the Staff has permitted that.
When we asked the p) 2 Staff for it, we were informed there was nothing written.
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3 There is no spur any longer done by the Staff.
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4 Because there is no spur we don't have the benefit'of what e
5 we have had access to in the past.
A4 6
When we had the spur, we had extensive exchanges R
7 of written interrogatories in Diablo, for example.
It proved R
8 8
highly beneficial and it eliminated a lot of controversy.
O c
9 JUDGE BRENNER:
My point is, can't you get that Ng 10 same information through these other means?
g 11 MR. BROWN:
I think we can.
We have to have the a
p 12 l time to do it, though because there are so many other things 3
(~3 13 going on and we need the cooperation of the other parties.
U l
14 We would like to have something written down, however, from E
2 15 the Staff when the Staff informs us that there has been no X s
y 16 or Y.
We would like documentation of that because it eliminates m
p 17 us from having to quibble about it in the hearing, simply by 5
18 asking that it be introduced as a matter of confirmation about 5
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19 that by a witness.
n 20 JUDGE BRENNER:
You can do that.
There are many 21 means of confirmation including that agreement and then just 22 putting it on the record.
If you get surprised suddenly, g3
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you can raise that with the Board that you were surprised.
24 g
What date would you propose, Mr. Brown, for filing U
25 testimony on it?
ALDERSON REPORTING COMPANY, INC.
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731 I
j MR. BROWN:
We frankly haven't even addressed that
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matter.
V) 2 3
JUDGE BRENNER:
Think about it now.
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MR. BROWN:
I'd be. happy to think about it but I
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don't want to wing it off the top of my head right now because 3n d
6 it's all integrated with what happens on emergency preparedness.
e 7
JUDGE BRENNER:
We would try these issues ahead A
8 8
n N
9 MR. BROWN:
I would just have to think about it, i
S jo Off the top of my head I would have to say from our standpoint c
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11 it would be thoroughly unacceptable for us to even confront
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12 that possibility.
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13 JUDGE BRENNER:
What possibility?
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E 14 MR. BROWN:
That is it conceivable that we would Ne 2
15 have a trial on some emergency planning issues in August, n
16 others subsequently, and an issue on security at the same time.
SW g
17 It's getting to the point where it no longer is reasonable.
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t 18 JUDGE BRENNER:
You've ignored what I just said.
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19 I said we would try this ahead of emergency planning for purposes n
20 of your thinking of a potential filing date for the testimony.
21 With that information in mind, I'm going to ask you before we 22 adjourn today, to tell me what filing date you would like to 23,
Propose it on.
I thought we were going to get that information 24 as part of the security filing today.
(
25 :
The parties haven't discussed schedule at all?
ALDERSON REPORTING COMPANY, INC.
732 1
MR. BROWN:
I haven't discussed schedule with any
(~ )
2 of the parties.
3 MR. ELLIS:
We would be prepared to do so on 4
May 25th.
{)
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JUDGE BRENNER:
No, that's much too early.
5 6
MR. BORDENICK:
I would suggest, Judge Brenner, R
7 that the parties confer.
We did not have an opportunity to R
j 8
confer on this yesterday.
O d
9 JUDGE BRENNER:
I want to establish the schedule 10 for security contentions before we discuss the schedule for E
j 11 partial litigation of emergency planning issues.
So we can key B
g 12 them at different times in accordance with Mr. Brown just said.
S 13 MR. BROWN:
There is another thing that is looming O lg m
14 here.
Since we are all winging this extemporaneously, it's 2
15 important I do that.
E g
16 I don't know how prepared LILCO is and indeed how w
6 17 prepared LILCO can be on this issue in a proprietary standpoint.
18 Namely, it has to have a security plan that is good and the P
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19 County has to have one that's good so they work well.
That n
20 should be the case before we have a hearing.
21 I very much doubt whether that will be the state 22 of events very quickly.
Therefore, I have to talk to Mr. Jones O
23,
about that and we have to talk among the parties.
If we had 24 fifteen minutes maybe even now, we could get some sort of
(
25 )
preliminary but intelligent response to your questions.
ALDERSON REPORTING COMPANY,INC.
b 733 j
JUDGE BRENNER:
I didn't understand what you just 2
said.
It's not necessarily your fault but maybe the recess 3
would be useful but I want to adjourn at 4:00 today.
The Board 4
has a long evening ahead of it..
[-}
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Besides this matter, do we have anything else to Ae 6
discuss before launching into emergency planning?
Rg 7
MR. ELLIS:
We do not, Judge.
8 MR. BROWN:
We have just our schedule consideration da 9
that I brought up this morning.
That could be at the very end i
h 10 though or whenever you wish.
E E
11 JUDGE BRENNER:
That would be part of emergency d
12 planning.
Ec d
13 All right.
Let's adjourn for fifteen minutes.
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14 Promptly though.
w 2
15 (Whereupon a short recess was taken.)
j 16 JUDGE BRENNER:
Back on the record.
We are ready W
g 17 to proceed.
U 18 I'm sorry, Mr. Shapiro, you can come back in.
We
=
b 19 are still discussing the schedule but there is no longer any 5
20 protected information on the table.
I 21 Does somebody want to make a report?
22 MR. ELLIS:
Well, when I suggested May 25th, I 23 ;
think you indicated, Judge, that that was too short.
So in 24 thinking ab^ut it, we considered that the material being made O
l 25 available on April 20th, if we provided sixty days from then I
ALDERSON REPORTING COMPANY, INC.
l
734 1
submit some testimony, that that would seem to be ample and not O
2 inconeiseene with whet we ere deine.
That was not eereeebte 3
to the County and the County has proposed submitting testimony O
4 I think in July or was it August?
e 5
MR. BROWN:
Well, our dates that we had proposed, Ul 6
and we have knocked off one, originally June 30th for the R
7 submittal of testimony.
That provides an opportunity for all 8
the informal discovery and the basis--
e.
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9 MR. ELLIS:
(Interrupting.)
June 30th for the Eh G
10 submission of testimony is only two days before--
3 5
11 MR. BROWN:
I'm sorry.
June 30th for the completion E
12 l of discovery.
That provides the basis not only for us informally d
c 13 to engage in discussion, two sides which are coming at us from
(]
l 14 somewhat different perspectives, but it also permits an 2
15 opportunity for the County Officials to be working with the E
16 LILCO people.
Perhaps, I can't promise this, but perhaps g
us 6
17 technically a lot of the problems will be resolved and only E
18 the problems which remain would be those which are appropriate 5
{
19 for litigation.
n 20 The reason that I think some of those will disappear 21 is that there is a difference in perspective between the 22 parties at this point.
23 That would have us with a filing date of August 1 24 with testimony.
Then we thought and moved back that June 30th
/sV 25 l discovery termination date to June 20th which is the sixty days l
ALDERSON REPORTING COMPANY, INC.
735 1
j and it's just a question of what is done on that as opposed to (J~3 the June date becoming a central issue.
2 3
I w uld like to point out, this question of the "T
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parties who have to be under protective orders and affidavits e
5 f non-disclosures working on the case because a very central 8
6 issue at the very beginning at Diablo.
It means that everytime e
7 we look at something, everytime we talk to someone, it has to g
8 be a special kind of telephone conversation, if it can be one n
d a
9 at all.
It means we have to do it under very constrained i
h 10 circumstances and constrained places.
We can't have materials 3l 11 anywhere except in a couple spots which are approved.
Therefore,
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12 the limitations that I am preparing go to practical matters 3.o rs d
13 that are unusual.
The Board ruled in a publicly available ALAB
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14 ruling in Diablo, that under these circumstances, that is a Ux 2
15 compesnating measure, that the Board wishes to take cognizance
.1 16 of.
When schedules are made, those difficulties which are very M
d 17 real I assure you, such as bringing out a secretary special, 5
M 18 working under someone else's office, someone else's schedule.
~
i:
19 who may be on a flex time.
There is a problem that requires M
20 compensation in terms of times and schedules.
21 JUDGE BRENNER:
Well, without regard as to whether 22 LILCO"s proposal is reasonable or not, given the length of time 23 you are starting from as we view it, and the Board discussed 24 this during the break, we wouldn't be able to litigate the 25 issue before the end of July.
Hearing time will be taken up ALDERSON REPORTING COMPANY, INC.
l 736 1
really through the end of July on all the other issues in our
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2 view.
Does anybody disagree with that assessment?
3 MR. BROWN:
We hope not but past history suggests
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(,/
4 that you are probably correct.
g 5
JUDGE BRENNER:
Even if you achieve the estimate 8
6 for a loose planning purposes only and that's all it is of R
7 about a contention a day, if you count up the number of hearing s
8 8
days as distinguished from calendar days, that gets you to the dd 9
end of July.
7:o 10 With that in mind, testimony filed late in July Ej 11 so that if everything else was completed by the end of July, 3
j 12 and that's a big if, so that we could continue the hearing 5
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13 thereafter, and I know we are going to discuss August, but m
14 whatever that thereafter is I want to be in a position to 2
15 continue it immediately after we complete the other issues, 5
j 16 whenever that is.
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17 I guess we end up pretty close to your August 1st
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18 date.
That backed up slightly.
We would require that testimony E
19 g
be filed on July 20th so there is a time for employees to n
20 review it and file cross examination plans and then we would l
21 be in a position to litigate it in August if we have a hearing 22
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in August or thereafter.
23 j Given that, I don't know what date you want to set 24 for the completion of discovery.
I think we should set a date 25 earlier than June 30th.
Not necessarily a lot earlier but l
ALDERSON REPORTING COMPANY,INC.
737 1.
in the area of mid June might be better.
l i
7s(_)
2' MR. BROWN:
Would June 20th be acceptable?
3 JUDGE BRENNER:
I don't know what day of the week
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4 that is.
It's a Sunday as it turns out.
Why don't we get g
5 to June 22nd so we get to the Tuesday in case there is a 6
transmittal, although that probably won't apply to this area.
R 7
Now discovery has to be completed.
I don't know sj 8
if we have to set intermediate dates or not.
I think not in d
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the area of security planning.
We've indicated how the discovery
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There won't be any interrogatories, not pre-11 cluding you coming forward with a special argument, but we
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12 would hope the need does not arise.
You should be able to S
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g 13 get all your information through viewing all the documents h
14 which should have been done or you can continue to do now, E
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15 and meetings with the witnesses and so on.
If you need to x
j 16 confirm anything that is in the nature of an admission, that's e
d 17 a much different purpose for discovery than getting the basic
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19 g
that if necessary, right on the record when we go on the record.
n 20 If you want to take a deposition, that's acceptable also and 21 you just better notice it well in advance of June 22nd.
22 MR. BROWN:
I take it the Board would entertain b'N 23 a motion to compel if we had some difficulty or LILCO or another r^s 24 party had some difficulty.
V 25l JUDGE BRENNER:
Yes, but again the parties should ALDERSON REPORTING COMPANY. INC.
a 738 1
come to the point where they can't resolve it themselves,
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have off the record conferences if there is a discovery dispute w
4 and perhaps we can resolve it that way for you also.
That g
5 might be more convenient for you.
E 6
I think nothing else can be said on the sulject R
7 of security plans.
A j
8 Mr. Shapiro, let me digress to the matter of your dd 9
clients who you do and do not represent, but before I forget, 7:
O g
10 it's been at least a long day for me.
You represent NSC but j
11 you don't represent OHILI in your view?
E j
12 MR. SHAPIRO:
That is correct.
=
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13 JUDGE BRENNER:
Can you give me the background on l
14 how it came to be associated with OHILI in some people's minds.
2 15 Wasn't there a consolidation of the parties?
j 16 MR. SHAPIRO:
As I understand it and I obviously W
d 17 was not Counsel at the time nor even involved with the Committee 18 at that time, and the connection with the construction licensing 5
{
19 proceeding, there was a motion to intervene by both the Oil n
20 Heating Institute of Long Island and the Northshore Committee.
21 JUDGE BRENNER:
Did you say the construction permit
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22 hearing?
23 MR. SHAPIRO:
Yes.
It's that far back, sir.
24 JUDGE BRENNER:
Mr. Earley is shaking his head no.
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25 Let's pick it up from the operating license stage?
ALDERSON REPORTING COMPANY, INC.
l 739 1,
MR. SHAPIRO:
Okay.
There was also then, this I
()
2 intevention continued and for a means which is not known to 3
me, intervention was either continued or granted again.
I do
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4 not know which.
o 5
JUDGE BRENNER:
It would have had to have been 39
@.6 granted again.
R 7
MR. SHAPIRO:
In the licensing procedure that we s
8 8
are now in.
O a
9 As the record will show, then Counsel for the--
g 10 Apparently there was a consolidation, let me back up.
Whether 3
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_d 12 know.
I just don't have all those records.
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j 13 JUDGE BRENNER:
Let me interrupt you.
I don't know e
14 either so who was here at the time?
Mr. Earley?
Mr. Bordenick?
2 15 MR. REVELEY:
I was here, Judge.
The Northshore 5
y 16 Committee and the Oil Heating Institute represented by.a.. lawyer W
d 17 named Howard Blau, filed timely petitions for intervention N
l 18 in this operating license proceeding in April 1976.
E 19 JUDGE BRENNER:
He filed a petition on behalf of g
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20 both parties?
21 MR. REVELEY:
He filed two petitions, one for each.
22 Those petitions were virtually identifical in terms of the 23,
issues that they raised.
24 LOCO and I believe the Staff, suggested to the 25 Board that consolidations woud be appropriate given the common 1
1 l
ALDERSON REPORTING COMPANY, INC.
l 740 1
Counsel and common issues.
Both Northshore and OHILI were then
()
2 admitted as a consolidated party with the single set of 3
contentions.
Susequently Mr. Blau lost interested in the
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4 proceeding, it appears.
Northshore Committee I believe s
5 then retained Mr. Shapiro.
N 3
6 So as far as I know we have not heard from the R
8 7
Oil Heat Institute in at least three years.
A j
8 JUDGE BRENNER:
So it's correct that Mr. Shapiro dd 9
never represented the Oil Heat Institute?
10 MR. REVELEY:
That is correct.
He only appeared 3
5 11 for Northshore Committee.
j 12 MR. SHAPIRO:
I accept Mr. Reveley's statement 5
13 because that's substantially because that's substantially
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l 14 the cause of my general recolllection.
2 15 As he pointed out, I filed a notice of appearance 5
g only for the Northshore Committee and indeed I had Mr. Blau's 16 w
g 17 cooperation in getting the file from him.
5 18 JUDGE BRENNER:
Do you know Mr. Blau?
E 19 MR. SHAPIRO:
No.
I've talked with him perhaps g
n 20 twice on the phone.
Otherwise I do not know him.
21 JUDGE BRENNER:
Well, did he file a notice of 22 withdrawal?
23 MR. SHAPIRO:
I'm not aware that he did.
I've 24 had nothing to that affect unless some of the other parties 25 received something.
i ALDERSON REPORTING COMPANY. INC.
741 1
MR. REVELEY:
No, sir. He has not filed such a 2
notice.
3 MR. SHAPIRO:
He is still on a service list as you U]
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4 know because nobody wants to take him off.
I will say this, e
5 that none of the letters I've sent to him have never been U
6 returned to me so I assume he still gets tncm.
R 7
JUDGE BRENNER:
I'm not saying my next statement A
8 8
to dispute you're saying that you've only come in as NSC's d
d 9
Counsel.
I certainly accept that from you but at the time g
10 you came in, was there any care taken to specify that you were El 11 only coming in to represent NSC and OHILI no longer had B
y 12 representaton in the case?
5 13 MR. SHAPIRO:
I did not bring my notice of l
14 appearance.
I'm sure I filed one.
I had to obviously under 2
15 the rules and I will be glad to dig through my files and send 5
y 16 a copy of my notice of appearance.
I was very careful to say w
d 17 only in behalf of Northshore Committee because my Writ, so to 18 speak, only ran to them.
5 l
{
19 JUDGE BRENNER:
It's not necessary that you search 1
20 your files unless you discover contrary to your recollection 21 that it covered both parties.
I'm wondering if anybody focussed I
22 on it at the time.
Os 23 MR. REVELEY:
We did focus on it, Judge, and our 24 position was at that time that Northshore Committee and OHILI l
(1) 25l remained consolidated for purposes of this proceeding even l
ALDERSON REPORTING COMPANY,INC.
l 742 1
though they were having different Counsel represent them.
()
We have not pursued that recently since OHILI as 2
3 a practical matter has disappeared.
I think it is fair to say
()
that at this juncture, Northshore Committee has assumed an 4
e 5
independent identity represented by separate Counsel.
A N
N 6
MR. SHAPIRO:
I may add, Mr. Reveley, that shortly e
7 after I was retained as Counsel, I filed a most informal s
8 8
application in connection with a license request being made N
d d
9 by LILCO.
I believe it was to bring the radiator fuel rods 7:
h 10 onto the site.
At that time I filed it only in behalf of 5
jj Northshore Committee.
We had a conference and the whole matter
<k d
12 was straightened out by stipulation.
3
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13 I say that only to show the independent position E
14 that Northshore Committee has adopted since I've been Counsel w
2 15 to it.
I don't even know if an organization called OHILI still 16 exists as a matter of law or fact.
MW d
17 JUDGE BRENNER:
There is no doubt that OHILI no 18 longer has any right as a separate party.
Then they were 19 consolidated.
The only problem is were they given notice that Sn 20 they no longer had any Counsel participating as part of th'at 21 consolidated entity representing them.
I take it Mr. Blau--
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22 Let me suggest this, Mr. Shapiro.
If it presents a problem w-23 for you, you tell me.
I think it would be prudent and helpful r"%
24 to the Board which is why I'm suggesting it for you to write
(_/
to Mr. Blau and inform him generally of the fact that as he knows 25 l.
ALDERSON REPORTING COMPANY, INC.
743 r
I at the time you came in, whenever it was, you came in retained
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solely by NSC and you have always viewed NSC as your sole client.
3 OHILI was part of the consolidated entity but neither he nor
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4 any other person presuming to represent OHILI or be a member e
5 of OHILI Or otherwise speak for OHILI, came forward to ever h
6I work with you as part of the consolidated entity.
You recently G
7 on the eve, shortly before the beginning of the evidenciary 3]
8 hearings, brought this matter before the Board to make sure d
d 9
they understood your sole representation.
You are writing him iog 10 to confirm this course of events as you understand it?
E j
11 MR. SHAPIRO:
I have no problem with that and I B
y 12 know it's consistent with my earlier correspondence when I told 5
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13 I had been retained by Northshore and he very kindly sent me l
14 his file.
2 15 JUDGE BRENNER:
As I say, you know some details that E
y 16 I don't know.
You might find it helpful to reference that A
d 17 earlier correspondence or attach it.
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18 MR. SHAPIRO:
I shall.
Does the Board want copies 5
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19 of my letter?
n 20 JUDGE BRENNER:
Yes.
I would appreciate it if that 21 could be filed in this case.
I'm not going to set a time limit 22 but the sooner the better.
23 MR. SHAPIRO:
I'll do it very quickly.
24 JUDGE BRENNER:
Thank you.
25 MR. SHAPIRO:
Thank you.
ALDERSON REPORTING COMPANY, INC.
744 1
JUDGE BRENNER: If the letter comes back, will you k-2 let us know?
3 All right, we are going to discuss potential
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4 schedules for the possibility of hearing some emergency e
5 planning issues ahead of others.
As we indicated in our b
6 order, we believe, potentially, depending upon the issues that G
7 the parties want to raise, that it is possible to litigate Mj 8
some issues ahead of other issues.
It has been done that way a
c; 9
in at least one proceeding, the Three Mile Island proceeding, zcy 10 although as it turned out the other issues caught up to it E
Il so it turned out to be a continuous hearing, but at the time a
j 12 that the testimony was prepared, it was prepared in segments.
5
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y 13 The reason we want to discuss this matter, as we m
l 14 discussed in our conference call with the parties, in portions
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y 16 order regarding emergency planning issues issued on April 5th, e
d 17 the conference call taking place on April 2nd, that the reasons 5
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18 for that appear that it is going to be a rather large time P"
19 g
gap before we can litigate offsite matters regarding emergency n
20 planning because the schedule--it is just an estimated schedule 2I at this point--by the County, as I understand the County is 22 (v~)
filing, and it was an understanding of what you are and what 23,
you are suppossed to do, Mr. Brown, it appears that the 24 final draft, if you will, estimated to be before the County 25 i Executive for his review in September, and in our mind we i
ALDERSON REPORTING COMPANY. INC.
l 745 1
carried through the first steps that would have to take place
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2 as indicated in your letter and this proceeding; that is, can 3
executives review a submission to the Legislature in accordance
(~)
s_,
4 with the regulation, a review by the Legislature, a review by e
5 FEMA in the final plan; all of these might not be seriatim.
0 6
There might be some overlap, but not much.
This would quickly R
7 carry us to the point where we wouldn't be in a position to a
j 8
issue a decision on any of these matters until approximately d
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a year from now.
You get to that point very quickly if you i
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g 11 or so for FEMA's review, time for preparation of testimony g
12 coincident with or perhaps after FEMA's review, litigation c
(s) j 13 of the matter and findings and our decision.
m 14 So this gap became important and within our respon-2 15 sibility to explore going forward on some of the issues.
We f
g 16 may be called upon to make partial findings under the proposed l
d 17 legislation in both authorization bills issued by Congress and I
5 M
18 also under the proposed regulation of the NRC.
And unless if
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20 to some of the issues in the proceeding, and I say that in 21 contradiction of the point raised by some of the filings,
(~ }
22 I believe primarily SOC's that no useful purpose would be l
23 ;
served by litigating part of the issues bccause nothing could 1
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happen in any event until all of the issues were litigated.
24 25 That may not be the case, depending on the proposed l
ALDERSON REPORTING COMPANY. INC.
j 746 1
regulation and the legislation and depending upon our findings n
k-2 on the issues.
If the gap had only been a short period of 3
time, then from a pragmatic, not a legal, point of view, it
()
4 may have been useful to wait and try everything together.
e 5
Essentially it was our view, and we also indicated 3n 6
this in our order, that LILCO's actions, the applicant's actions R
7 under the plan could be litigated.
That was not restricted to s
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their actions on site.
One of the filings, and we haven't d
9 had much time to look at it, underlined the word " site."
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g 10 We did not describe it that way, I don't believe.
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11 licensee's actions under their emergency plan.
There is a B
I 12 distinction between some of the areas, because their actions
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5j 13 take place offsite although they depend wholly, or at least a
m 14 primarily, upon the applicant'.s actions; for example, the g
15 operations facility, dose monitoring teams, and so on.
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16 There are clearly many issues that cannot be w
6 17 litigated involving the offsite planning by the Governmental
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We are not talking about those issues.
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We have looked at the filings of the issues.
We n
20 haven't had enough time to be in a position to go through them 21 seriatim to determine ourselves which ones we can proceed on
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and which ones we cannot proceed on.
What we propose is that 22 23 {
the parties together go over those subjects that are in the 24
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filings and the filings are helpful in terms of identifying 25 the areas of concern, and we appreciate that.
In some cases ALDERSON REPORTING COMPANY. INC.
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they are very close to potential contentions.
And I say that l'
2 by way of thanking the parties.
They were specific enough for 3
us to understand what it is that you eventually might want to
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4 include in contentions.
s 5
We would like the parties to jointly examine g
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contentions, those subj,ect areas and determine whether they R
7 fall within the category that I am about to describe now,
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that is, actions by LILCO, whether it be onsite or offsite d
c; 9
but actions by LILCO.
That would be the broad definition.
zo 10 This would include communications between LILCO and offsite II response agencies, particularly the initial notification from 3
Y I2 LILCO in the event of an emergency.
It would also include c
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y 13 the ability of the emrgency operations facility to serve its m
l 14 functions, which would include the accomodation of the offsite g
15 staffing of the local response agencies at the EOF, not a x
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I7 just who under the County's plan would report to the the EOF.
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18 We are not talking about that detail, but the basic design of P
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l 20 which would be contemplated to be needed to be there and who 2I those r ;ple would be and how they would get there, and so on 22 j
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would await completion of the offsite plan.
23 What we believe could be litigated now would also 24 include the arrangement of the assistance resources needed on 1
25 site by the licnesee such as medical services and so on.
ALDERSON REPORT!NG COMPANY,INC.
I 748 1
That is for the onsite operations that would need to take r) place in an emergency.
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It would also include assessing and monitoring O) s_
4 radioactive releases and doses by the licensee, whether those 5
activities would be offsite or onsite; whether it is the e
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6 licensee who is doing it under its plan--I should say applicant.
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I get some of this from Three Mile Island where the respondent M
8 a
was known as the licensee.
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9 Anything that we are unsure about.and we take i
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5 11 raises the issue the efficacy of the warning system within
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12 the approximate ten mile EPZ without prejudice to whether we 3o 13 w6uld:have to21ook beyond those ten miles later in case of
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That would l
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Eh 19 And as I understand it, even though the County 8n 20 is still working on its plan, well, I will hear from the 21 County now briefly; is that something that you think we could 22 look at now if somebody wanted to raise it?
l 23 MR. BROWN:
The County situation?
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24 JUDGE BRENNER:
The siren system within the ten i
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25 mile EPZ?
ALDERSON REPORTING COMPANY, INC.
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MR. BROWN:
I don't see how we could just discuss
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2 the placement of the sirens without the placement of the sirens 3
being a function of where would the sirens be needed.
It is t( ')
4 going to be a product of a lot of hard work that is going on 5
g in the next few months.
4 6
JUDGE BRENNER:
Even within the ten mile?
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7 MR. BROWN:
Yes.
See, inside the ten miles is sl 8
affected by outside ten miles, and vice versa.
There is a d
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major undertaking headed by Drs. Erikson and Johnson.
zo G
10 JUDGE BRENNER:
We will get to that in a moment, 3_
11 but can you tell me why we would need to determine what place-j 12 ment if any of sirens would be needed outside the ten miles 5
13
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g 15 MR. BROWN:
Within the limits of my knowledge, I e
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would be happy to do it, then.
It certainly could be corrected 16 I
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e 18 But the evaculation shadow phenomena suggests that 5
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20 miles, twelve miles, or forty miles, there is a very substantial 21 exodus.
Some people will respond by under-reacting and some 22 by over-reacting, some flee; there are all kinds of demonstra-23 tive behavioral patterns that have been shown and we are l
24 going to hopefully be able to embrace those things, and thus 25 it might well be that because it is unpredictable how people ALDERSON REPORTING COMPANY, INC.
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at twelve miles will behave, you want to make that a matter
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2 of predictability so that it doesn't interfere with what people 3
are doing in the ten miles, or four miles, or three miles.
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4 JUDGE BRENNER:
I guess I wasn't very clear in o
5 my question and I should rephrase it.
The sole mechanical 39 6
question I am thinking about is whether or not the sirens R
R 7
would be properly placed within the ten miles so that they a
8 8
could be heard within the ten miles without prejudice to the d
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possible later litigation of whether the system needs to be
$g 10 extended to take account of anything beyond ten miles either g
11 because of evaculation or cattle phenomena or what.
3 j
12 MR. BROWN:
Well, I guess I don't see how it
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5l 13 could be separated if within ten miles sirens were working m
l 14 perfectly, you could litigate that and show that electrically 2
15 and otherwise the'decible are perfect.
That isn't_the issue.
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16 It is what the people do who hear it.
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17 JUDGE BRENNER:
I am only tdking about the mechanical 18 issue.
=
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19 MR. REVELEY:
We feel very strongly that~ the g
5 20 mechanical issue can be litigated.
LILCO system has been 21 designed.
It has been submitted to the County.
LILCO's
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system has been looked at by die County people and their 22 l
23 comments have been taken into account.
It is a known quantity
/s 24 now.
Its adequacy can be litigated within the ten mile area.
O 25 I If Mr. Brown thinks that at some subsequence date i
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further information may bear in some fashion on the adequacy
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2 of the system, then, of course, that could be taken into 3
account at that subsequent date.
But we don' t see any reason
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4 to wait on such matters as the adequacy of the sirens within s
5 the ten mile zone.
R 6
MR. REPKA:
Judge Brenner, at this point it might R
7 be helpful if I introduce Mr. Stewart Glass who is counsel n
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for the Federal Emergency Management Agency.
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9 JUDGE BRENNER:
Welcome Mr. Glass.
io 10 MR. GLASS:
Thank you.
I am Regional Counsel for E
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11 Region 2 which would include this jurisdiction.
The acceptance a
j 12 testing of the sirens is the responsibility of the Federal 5
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y 13 Emergency Management Agency, and so I would recommend at this
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15 conducted by FEMA.
We are right now for OMB to approve the j
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I think the w
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19 the status of acceptance testing and to understand how it is g
n 20 to be utilized.
I 21 JUDGE BRENNER:
Maybe I am discussing an acedemic 22 point.
I don't know whether anybody wants to litigate whether 23 the sirens can be heard within the ten miles.
Maybe I should 24 ask that question first.
25 MR. BROWN :
Well, I think rather than beating ALDERSON REPORTING COMPANY. INC.
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around the bush, let me get right at the County's concern.
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2 JUDGE BRENNER:
Let me finish my question.
Does 3
anybody want to litigate whether the sirens can be heard
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4 within the ten miles?
Is that"one of the issues that was e
5 liste'd?
We haven't had much time to look at the document.:
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MR. SHEA:
Yes.
SOC's concerns list the R
8 7
notification. systems.
Ml 8
JUDGE BRENNER:
Could you direct me to that, do 9
Mr. Shea?
bg 10 MR. SHEA:
Item 6.
b 3
11 JUDGE BRENNER:
What page is thit on?
s l
12 MR. SHEA:
I found this on Page 9, and there is 3
13 I believe, another paragraph in there discussing another
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2 15 JUDGE BRENNER:
All right.
You have raised the 5
16 point.
What is the status of the system?
When you say accept-g W
p 17 ance testing.
E 18 MR. GLASS:
That is the standard that we utilize 5
h 19 to conduct our test, and in the memorandum of understanding n
20 that we have with the NRC, this would be one of the areas 21 that the Board would be looking to FEMA for its determination.
22 JUDGE BRENNER:
Well, does the system have to be
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23 ;
installed originally before?
24 MR. GLASS:
It certainly would have to be installed.
s 25 But even before it was installed, you would still need, if you ALDERSON REPORTING COMPANY, INC.
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1 are talking about the actual capability to be heard--not
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5 was receiving notification by way of the siren--that is something h
6 that is under FEMA's jurisdiction.
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7 JUDGE BRENNER:
Is there a schedule for installation s
8 8
of the sirens within the roughly ten miles?
dd 9
MR. BROWN:
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10 summer.
There is an overriding issue of where they go, what E
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12 JUDGE BRENNER:
I am just talking about hearing 3
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13 the sirens.
I understand there are all these problems, but l
14 I want to take one issue at a time.
g 15 nR. brown:
But the word installation means place, x
16 and it is not an abstraction, but where they are to be.
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d 17 JUDGE BRENNER:
well, presumably for starters, 5
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in the wrong place, or there aren't enough of them or not n
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2I MR. BROWN:
I am not a siren expert, but it does 22 make sense to me as a practical matter that the proper location 23 ;
of those sirens is tied into what evaculation routes will be 24 l used and what kinds of protection will be taken and when,
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ALDERSON REPORTING COMPANY, INC.
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JUDGE BRENNER:
Well, I will tell you that I don't O
2 see thee.
3 MR. GLASS:
The main reason for the sirens is O
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indicating the person is taking a partiuclar evacuation route.
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station to receive additional instructions.
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JUDGE BRENNER:
Is it Mr. Glass?
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2 MR. GLASS:
Glass, like drinking glass.
3 JUDGE BRENNER:
Are you going to be appearing in
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5 MR. GLASS:
I hope not.
I am tied up with Indian e
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Point right now.
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7 JUDGE BRENNER:
Well, if an attorney does call---
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MR. GLASS:
Oh, I will be appearing as an dd 9
attorney, but for a witness, will be bringing another individual z,
o 10 JUDGE BRENNER:
I would ask that you file an 3
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B 12 MR. GLASS:
We are technically not parties.
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13
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are brought in as witnesses by the NRC staff.
l 14 JUDGE BRENNER:
Well, you better appear for some-2 15 body if I am going to let you speak in this proceeding, and 5
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18 to get you.
I think staff counsel can direct you to the right P
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20 to the status of FEMA, but nevertheless, you are representing 21 FEMA.
22 MR. GLASS : I am representing FEMA, but as a witness
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24 JUDGE BRENNER:
But you are not a witness.
You
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They may not be a ALDERSON REPORTING COMPANY. INC.
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party, but you are representing them in cooperation with the
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2 staff as I understand it.
3 We were confused and bemused by the staff's filing
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its state in the schedule that they filed before Congress.
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The date calls for an April 15th interim finding s
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date.
What finding would you make?
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9 MR. GLASS:
Why don't I back up and explain our bg 10 stand on this whole situation.
No. 1, the plan that is E
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12 signed off by the Governor indicating that he feels that the 5
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state of the plans are sufficient to protect the population.
14 The State has file a generic State plan.
They 2
15 have not filed the site specifics for Shoreham Nuclear Power M
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d 17 what we generaically refer to as County plans.
We would need 18 that material before we can do our review.
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regulations.
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20 previous situations with the State of New York that we would 21 normally receive that material 120 days before an exercise
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exercise 75 days before the exercise is conducted, and that I
24 I is the usual pattem that we have operated with in New York State CE) l 25 '
Out Regional Director will be meeting on April 23, 1
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with representatives of LILCO and of the County to see if
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3 JUDGE BRENNER:
Well, does generic schedules
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MR. GLASS:
The hearings that you deal with here h
6 rely on the FEMA findings.
FEMA's own regulations say that R
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8 8
we still have to follow our regulations as to the procedures d
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in order to conduct the review.
It is impossible to conduct 10 a review without having the plans or to have tested those plans.
11 Your date is actually putting the cart before the 3j 12 horse.in the fact that you have hearing schedules before you S
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3 13 have copies of plans for review.or have an exercise to test s-m h
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the efficiency or adequacy of those plans.
2 15 JUDGE BRENNER:
What was meant then by that staff 5
16 filing that FEMA hasn't changed its findings in April.
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We do not control the exercise date.
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and the utility.
We have since met with the NRC Region 1 who n
20 have informed us that they have not yet received a filing from 21 either the utility, the County, or the State, and we have met 22 with them and we are trying to revise the schedule for the 23 exercise.
24 JUDGE BRENNER:
I think you said, and I would imply 25 that those dates are wrong?
ALDERSON REPORTING COMPANY, INC.
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MR. GLASS:
Correct.
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2 JUDGE BRENNER:
What was the staff trying to say?
3 MR. REPKA:
Clearly those dates are wrong, judge.
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4 FEMA knows no more about the schedule in this case of the e
5 emergency plan than anyone else does.
We are all at a loss to dl 6
know when Suffolk County, when the State of New York will file R
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In this filing the NRC staff is simply pointing out s[
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on for the sake of its filing for the Simpson Committee, and 10 those dates are clearly hypothetical and they are clearly 11 wrong, but absent any further input from the State of New York w
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Let me interject, when we were h
14 asking for a schedule, it would have been helpful for you 2
15 to say that in your filing and not that the date hasn't j
16 changed, which implies that it is still accurate, and that w
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That was the source 5
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I don't know who follows these i
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20 fix them.
21 MR. KELLY:
Your Honor, this may be an appropriate 22 spot for me to make a comment to clarify things for the Board 23 for the State of New York.
As you were aware this morning, 24 f3 I handed you a copy of a letter that indicated that although V
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the County filing of March 29.
Nonetheless, at a meeting
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Radiological Emergency group of the Disaster Preparedness
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that was made by Suffolk Ccunty and affirmed that it contained e
6 materials that they had been reviewing over the past year in R
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8 complete for ten mile and fifty mile evacuation zones.
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9 JUDGE BRENNER:
State plan or the County plan?
zo 10 MR. REPKA:
I a.m sorry, the County plan that was
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Now, I know the County has indicated that they a
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15 this time to take the file that the County made on March 29 8
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17 that date to put together a State site specific plan in a k
18 relatively short amount of time.
As I said a few days, in 19 g
my original letter of March 29.
My understanding at this time n
20 is that in addition to the materials that were filed on March 21 29th, there are other sections of the plan that were filed that 22
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are now available or will be ready in the very near future.
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In the meeting yesterday, numbers of the county staff 24 indicated that those parts would be completed in as short time 25 as two weeks.
We would be ready then to put together a State ALDERSON REPORTING COMPANY, INC.
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plan very quickly thereafter and to submit it to FEMA so that O) 2 they could make plans for their exercise.
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5 Mr. Brown during the break.
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say to my understanding unwilling to participate in any plan d
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for an exercise, and if I am wrong, Mr. Brown, please correct 10 me, so I would request the Board to insure that the State 11 is served with the materials promptly and to direct the County B
I 12 to cooperate with the State of New York in planning for an aa 13 exercise that would be suitable for its purposes given the l
14 guidelines that Mr. Glass has.
h 15 JUDGE BRENNER:
Let me stick with FEMA for a moment m
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Given the sdject area that the Board e
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I will repeat g
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for assistance resources needed onsite for LILCO's people
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assessing and monitoring the. radioactive doses and that sort
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within the approximate ten mile EPZ, are those things that FEMA R
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9 MR. GLASS :
What time schedule are you talking about ?
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Well, I don't want to get into a E
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Say August or September.
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No, we do not.
The interface with the
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15 the plans and we actually test them during an exercise.
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16 JUDGE BRENNER:
What plan would you need to see W
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19 MR. GLASS:
It would be the use of the County plan l
20 or the local plan is a little misleading.
It is the offsite 21 emergency operation plan that deals with the annex to the 22 State plan that deals with site specific areas and that would l ()
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24 who they will be calling.
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they feel that they have a manner in which they can test their
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be addressed by the NRC without getting into our interface at
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6 JUDGE BRENNER:
Mr. Glass, I am sorry, I just can't R
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is involved or not involved.
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FEMA is involved in everything that ieg 10 involves offsite preparedness.
Once you have the contact from Ej 11 the onsite to the offsite, at that point of interface is where a
j 12 FEMA's responsibility begins.
5 13 JUDGE BRENNER:
Would FEMA review whether or not
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15 it and is properly staffed by licensee's personnel?
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We look at it in conjunction with NRC M
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19 JUDGE BRENNER:
All right, what about the LILCO M
20 personnel who would assess the radioactive releases and doses 21 both offsite and onsite, would that be FEMA or NRC?
22 MR. GLASS:
That would be FEMA offsite.
23 JUDGE BRENUER:
Now, is that information available 24 now for you to look at--it's in the licensee's plan as I l ()
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reviewed it.
ALDERSON REPORTING COMPANY. INC.
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MR. GLASS:
You refer again to the licensee's plan.
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which are both the agencies that review the onsite and the
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4 offsite have not been provided" copies of that particular plan.
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JUDGE BRENNER:
What particular plan?
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The particular plan that you are talking R
7 about which is referred to as a draft Shoreham County plan.
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JUDGE BRENNER:
You are talking about the County.
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LILCO's plan.
I will ask.Mr. Reveley.
7:og 10 MR. REVELEY:
LILCO plan was filed with the NRC 11 and apparently I have bee told that we have not provided to a
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Copies go to the S
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It is mindboggling.
g 15 MR. REVELELEY:
We can give FEMA a copy if that m
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The bureaucracy is a little confusing E
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Those are the people who are providing 23 data as FEMA does to this Board.
Those two sections have not 24 received copies.
I was in touch with George Smith--
25 '
JUDGE BRENNER:
Well, let me stop you there.
I am ALDERSON REPORTING COMPANY,INC.
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going to try this question and I don't mLun to pick on you.
2 I am confused.
Maybe it is my fault.
Mr. Reveley, do you.know
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ment personnel teams to go offsite to assess radiological U
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doses in the event of an accident?
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MR. GLASS:
Yes, it does.
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JUDGE BRENNER:
That is what I mean by LILCO's N
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plan.
They have a plan.
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We have not received copies of it.
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Should you have received it?
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2 15 MR. GLASS:
We would review that, but we would 5
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18 MR. REPKA.
Judge Brenner, we think the staff E
19 would be reviewing the assesment and monitoring of dose rates g
n 20 and the staff would be in a position to review this part of 21 LILCO's plan after the staff makes its onsite appraisal which l
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23 JUDGE BRENNER:
All right.
The onsite.
I am glad 24 you reminded me of that.
An onsite appraisal was listed as
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3 MR. REPKA:
I believe on page 4 of the March 29 filing
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pleted by mid-April to May.- In the time since this filing was h
6 made that date has been revised and it should be the last half R
7 of July.
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8 JUDGE BRENNER:
Now, LILCO claimed in their filing d
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that in their view at least, they may disagree when we get to 10 the litigation, but in their view the plan was complete.
If 11 that is the case, why is the onsite appraisal not going to B
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5
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Just a second.
This is a situation
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14 whece they are in the midst of training and evaluation and 15 the staff will not be able to review until that is complete.
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I missed your opening statement.
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18 MR. REPKA:
LOLCO is in the midst of training and E
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implementation and this cannot be reviewed by the staff until n
20 it is complete.
2I JUDGE BRENUER:
And you estimate that that is going 22 to be approximately the end of July?
m 23 MR. REPKA:
The end of July, correct.
24 JUDGE BRENNER:
Am I correct in assuming that that O
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as issues to go forward on, that is, the licensee's actions 2
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and we gave examples within that?
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MR. REPKA:
That is correct.
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What form would the staff's final l
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The staff will issue a report.
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Would I be correct in assuming 7.
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sometime after that?
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That is absolutely correct.
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JUDGE BRENNER:
Does LILCO disagree with that
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that?
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4 MR. REVELEY:
It's'the Staff's position that it g
5 will not be able to take a position on these issues because 0
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So far as LILCO itself is sj 8
concerned, the plan has been available, the procedures are d
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available, the training is no ongoing and we believe that the 10 issues are right for consideration.
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The reason I asked you is not k
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16 MR. REVELEY:
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I just don't know.
M 20 JUDGE BRENNER:
So that onsite appraisal column that 21 I saw, again I guess that was on the Congressional Report.
I 22 don't have it in front of me.
That is a staff performed
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23 appraisal rather than FEMA, is that correct?
24 MR. REPKA:
It would document the same thing, that's
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25 correct.
ALDERSON REPORTING COMPANY,INC.
768 1
JUDGE BRENNER:
So the possible subject that FEMA
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3 whould be the Siren System because FEMA would be involved
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6 MR. GLASS:
Yes.
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JUDGE BRENNER:
Do you review the assessment of whether or not it's believe they will be properly placed 8
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Do you do it in two stages?
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Correct.
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What was the term you applied to v
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Acceptance testing.
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So there would be--
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That's the actual testing to make sure M
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20 JUDGE BRENNER:
You can do an earlier review of l
21 whether or not the proposal appears as if it would be proper 22 subject to the test?
23,
MR. GLASS:
That's the design review.
That's correct.
24 You are talking about two reviews.
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the geographical area.
The second is a physical test of the
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In other words, you press the button and the sirens
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In this case we will
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Whether they heard them indoors, outdoors, how far e
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That's e
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an operational test.
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8 JUDGE BRENNER:
What's the status of the schedule d
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of the first review?
The design review by FEMA?
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14 JUDGE BRENNER:
Is that LILCO or the County that 2
15 installs the sirens or proposes to install the sirens?
j 16 MR. GLASS:
LILCO is footing the bill.
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17 JUDGE BRENNER:
Is there information now available 5
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Apparently County Officials have g
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21 JUDGE BRENNER:
Where are those proposed locations?
22 Is that in the LILCO plan that we have received?
23 MR. REVELEY:
The map showing the locations is 24 available now.
A written report describing those locations 25 in more detail should be available in two weeks.
i i
ALDERSON REPORTING COMPANY, INC.
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JUDGE BRENNER:
Subject to somebody disagreeing,
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2 it seems they should be followed in proceeding since it would 3
be supportive if not part of LILCO's plan and SOC would be
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4 entitled to it since just in quick blush, one of the areas e
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An 8
6 I don't want to go into it.
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not receive the draft County plan.
Hopefully those kind of dd 9
complications will not occur in the future.
10 MR. SHAPIRO:
Judge Brenner, I would also like to g
11 get a copy of the siren installation plan.
You mentioned the B
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Yes.
Everybody in the case unless m
l 14 it's a bulky type discovery document in which case you could 2
15 limit it to the parties immediately affected.
g 16 MR. BROWN:
When can I make a statement?
A lot W
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18 JUDGE BRENNER:
Right now.
E 19 MR. BROWN:
It has to be two parts.
I have a very g
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21 Mr. Jones is the only person who has actual facts 22 pg and is Chairman of the Steerman Committee of the County in J
23 charge, you may seen him.
He came up to me and asked permission 24 if he could give the actual facts because he spoke with 25 Mr. Davidoff who is the Chief of this State of New York.
ALDERSON REPORTING COMPANY,INC.
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Largely without belaboring it, much of what we CJ
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heard from the table to my left was a representation of fantasy.
3 There will in fact be no County Plan.
There will in fact be d
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Thus, there will e
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action which he or she might be called upon in order to respond R
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11 there could be perhaps an emergency plan for the Shoreham B
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h 14 I'm sure the Board will recall, prior to Three 2
15 Mile Island, the local and state plans ahd to comply with the 5
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Now there will be no plan w
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I would like to characterize 23 that and then if Mr. Jones could represent his conversation with 24 Mr. Davidoff and related matter, if you would like that now, it s
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2 JUDGE BRENNER:
We'll go with you first and then 3
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I'm interested in the broader d
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question of whether or not there is a County Plan that io 10 essentially covers the 10 and 50 miles as alleged by the State g
11 Representatives.
B j
12 MR. BROWN:
Just before I go to what is happening 5
13 now, it is important to know the document as I thought I had l
14 made absolutely clear and I certainly did to the gentleman 2
15 from New York as he stood just behind me.
In fact I believe s
j 16 that I told him--
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17 JUDGE BRENNER:
(Interrupting.)
Okay, now we are
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E 19 MR. BROWN:
Sorry.
Then I'll just represent it g
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20 now.
This plan which was submitted on the 29th of March, I 21 believe, for purposes of planning here should be viewed no 22 different than the plan for Succotash, Wyoming.
It is not p
V 23,
the operable Plan and the Legislature has mandated no plan 24 will be implemented except that in pursuit of the Legislature's O
25 '
resolution and the mandate of the County Executive both of which ALDERSON REPORTING COMPANY,INC.
5 773 1
I've transmitted to all the parties.
2 The standing of the Steering Committee which 3
Mr. Jones heads is that it has been rounded out, its membership.
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4 It's membership includes Dr. Kai Erickson.
It includes now e
5 myself.
It includes the other individuals who are mentioned E
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in my letter, Dr. Koppelman, Lee Koppelman.
Also, a new e
8 7
addition would be Dr. Phillip Hare from the Massachusetts M
8 8
Institute of Technology.
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9 The consultants whom the County has retained since iog 10 we last addressed the Board in writing on this matter are the E
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Dr. Erickson, Dr. James Johnso'n who are going to O
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12 be performing the psychological and sovi61ogical survey and
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13 doing related work in the planning.
E 14 The Emergency Planning Firm of PRC-Voohees has been W
2 15 retained by the County to serve as the principle working party a
g 16 during the preparation of the document and the County is now w
d 17 in process of retaining two additional consultants.
Hopefully 5
18 that will be consumated shortly.
One is to perform a consequence E
19 analysis and to deal with that analysis which LILCO has already g
n 20 undertaken.
It has been provided to us in draft form and an 21 individual who is a consultant and an expert on health affects.
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22 The last two haven't been retained yet.
We're looking into 23 who should be the consultants.
The rest are moving ahead as
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24 promptly as they can.
25 l JUDGE BRENNER:
You are giving more detail than I ALDERSON REPORTING COMPANY. INC.
774 1
need in terms of the particular individual.
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2 MR. BROWN:
Perhaps Mr. Jones then can address the 3
other point.
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4 JUDGE BRENNER:
Or perhaps you can.
Either one.
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5 Mr. Jones is welcome to address.
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6 MR. BROWN:
Unfortunately I can't because he spoke e
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7 with Mr. Davidoff and I don't want to make any--
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JUDGE BRENNER:
The only question I think we need d
d 9
to have answered is whether or not the County does have an 10 essentially complete plan that covers the 10 and 50 mile zones.
Ej 11 MR. JONES:
The simple answer is no, sir.
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25 ALDERSON REPORTING COMPANY, INC.
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MR. JONES:
I ended my conversation with Davidoff
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2 yesterday.
We discussed the matter.
My understanding with him 3
when he left here yesterday is he was going back to Albany to
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4 confirm his conversation with. me and then readjust his plans e
5 in terms of the State's response or the State's plan based 3
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6 on a current schedule of October 1.
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7 I would like to address one other matter because s
8 8
both sides have been talking about County officials approving
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plans.
Clearly /only County officials that can approve plans 10 are myself and under the resolutions that have been passed El 11 under these plans, the County Executive must approve them B
g 12 and the County Legislature must approve it.
We are a clearly 5
13 local law mandate.that those plans be submitted for approval.
l 14 No such plan has been submitted.
No such approvals have been 2
15 undertaken by them, so to say the County officials have to 5
y 16 approve the plans or even portions of a plan is simply not W
6 17 the 'act.
5 M
18 JUDGE BRENNER:
I don't think he said that.
Whether
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19 or not he did, let me ask the question this way.
I understand g
n 20 your position on the formally approved plan being consistent 21 with the County's internal responsibility and the resolution.
22 I'll transform what he said if you didn't say this more directly 23,
I'll ask; is there in fact a plan, although anapproved, that 24 covers approximately a ten mile zone with respect to support O
25 services and evacuation and so on?
ALDERSON REPORTING COMPANY, INC.
776 1
MR. JONES:
No, sir.
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2 JUDGE BRENNER:
The County can pursue this further 3
off the record, because obviously there is a difference.
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4 MR. REVELEY:
Judge, may we suggest that perhaps e
5 there are others, too, who will be involved if the County will b
h 6
in fact produce everything that they have draft, then all of R
7 us may look and reasonable people may disagree as to whether a
j 8
or not there is a plan that by normal standards constitutes do 9
an emergency plan for ten and fifty miles zones.
We believe 10 that such a draft exists.
He believe that it could provide j
11 the raw material for the State to put together a plan that a
j 12 could be a good review.
We believe that the drills could go 3
13 forward.
We are very disturbed to hear that the County is
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15 participate in drills except under a plan approved by the e
16 g
Legislature.
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17 We anticipate that the County plan would be in E
18 hand this March.
We are very disturbed that now October.is e
19 g
about the date at which a written draft will exist which must n
20 then first must be approved by the Legislature.
The legislature 21 may or may not approve it, and it is, of course, possible that 22 the requisite planning can be done by agencies other than the 23 County if the County for one reason or another fails to do the 24 job in a timely fashion.
(._.)
25 I JUDGE BRENNER:
Well, we did direct the draft be ALDERSON REPORTING COMPANY. INC.
777 I
turned over and we received one and Mr. Jones just told us that 7"
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that is it.
3 MR.REVELELY:
I believe that there is more draft
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We re'ceived the draft through March 5
g 10th, and I would like to receive everything after March 10 as well 9
3 6
JUDGE BRENNER:
There better not be a further draft R
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plan.
We required that everything be turned over to us.
Is s
8 8
there some---
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9 MR. JONES:
Everything available to date has been 5g 10 turned over.
II JUDGE BRENNER:
Everything available to date today?
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12 MR. JONES:
We turned it over on the 29th of March.
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13 JUDGE BRENNER:
Well, since then, is there a further l
14 plan that covers ten and fif ty miles?
2 15 MR. JONES:
No.
m 16 g
MR. BROWN :
I think it is best to clear up what M
N 17 might be for lack of understanding--we handed over a document, 5
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19 g
and entitled something like draft plan.
This is what it was
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20 entitled.
It isn't a draft plan because the County embarked l
l 2I on a planning process that goes to its central obligation of 22
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protecting its own people, and it is that process which will 23 produce the plan.
24 All the documents are mere paperwork.
They are 25 '
no different than trying to bring a lawsuit under the Articles ALDERSON REPORTING COMPANY, INC.
778 1
of Confederation.
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2 JUDGE BRENHER:
What documents?
3 MR. BROWN:
This document.
I don't know if there
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4 is anything else or not.
Whatever it is, I haven't seen it.
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Everyone else is alluding to it, so perhaps they from the N
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so-called County officials, whoever those mystical people might R
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be, were unauthorized, Mr. Jones states, and he has talked s[
8 to somebody about this matter.
This is very important.
We d
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all know that the plan, whatever other documents are called, c
10 bu whomever calls them other documents, anything he or she
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11 wishes, are still in fact no emergency plan until that plan B
j 12 is produced under mandate of the Legislature and the County 5
13 Executive and there will in fact be no preparedness.
h 14 JUDGE BRENNER:
I understand your position, but l
2 15 we required that the draft plan materials be turned over and j
16 that was done.
Now, we are getting what I consider very
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18 documents which essentially comprise a typical emergency plan P
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19 for the approximate ten and fif ty miles zones.
If that is the n
20 case, then certainly--you are saying that that is not the case.
21 MR. BROWN:
Not that I know about.
I don't like l
l 22 all these cuteisms.
It isn't maturity.
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23 MR. REVELEY:
My short answer judge is that these 24 people should be told to turn over whatever they nave, whenever
(-)
25 l it was prepared.
ALDERSON REPORTING COMPANY. INC.
779 1
JUDGE BRENNER:
Well, we did.
That was our directive.
()
2 That they would turn over the draft planning materials that are 3
emergency planning to date, even though.it is the County's
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4 position that it was not their formal plan and they were doing e
5 further work that they have indicated.
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MR. BROWN:
Unless it is something that I don't e
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know anything about.
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8 JUDGE BRENNER:
You two should discuss it off the N
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9 record if there are other materials.
If they exist, we are 7:o 10 ready to hear about it, because we have ordered that it be 3
E 11 turned over.
As you know, from the other point of view, we
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12 have ordered a lot of documents to be turned over to you and Ea 13 it was in that spirit that you turn over your draft documents
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l 14 at our direction, and there just better not be something else 2
15 there that was not turned over.
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16 MR. BROWN:
All this terminology of better not w
d 17 be and appropriateness.
Mr. Jones has said that we gave up 5
18 everything that we had that was given to me as of the 29th.
E 19 I don't know of anything else since.
If there is something 8n 20 though from each time that he produces a piece of paper, 21 everytime Phil Hare, Ki Erickson, or someone else produces 22 a piece of paper during their work we can't be sending out 23 ;
copies to everyone.
They are going to be doing work for the 24 next five months.
We are engaged really here with something 73
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25 j very very serious.
It seems to me to be that people---
ALDERSON REPORTING COMPANY, INC.
780 1
JUDGE BRENNER:
Mr. Brown, we are running out of
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2 time, Mr. Brown, and I want to cut it short.
I agree with 3
you that unless comes forth with something specific saying
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4 they have something and we haven' t received it, I am certainly e
5 not going to go any further to say that the County has not E
N 6
complied with our direction.
If there is something there, R
7 Mr. Kelly, Mr. Reveley, whomever is concerned and interested, Nl 8
I suggest you discuss it wholly with Mr. Brown or County d
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counsel handling the matter and if there is something that zog 10 needs to come before the Board after those discussions, we E
11 are here.
2
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12 MR. REVELEY:
We will do so.
3 13 MR. KELLY:
Your Honor, you stated during your
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14 discussion that the County had turned over the draft.
I 2
15 would just like to correct for the record that we still as of 5
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16 this moment have not received that document and I would like w
d 17 to have the opportunity to have an indication as to when we E
M 18 will get that document.
E 19 JUDGE BRENNER:
I am sorry.
I didn't realize g
n 20 that you didn't get the document.
21 Why don' t they have the document?
They are on 22 the service list and should be served, Mr. Brown.
7,0 23 MR. BROWN:
I think the only persons who received 24 the document were--the actual document because of the dif ficulty O) 25 in reproducing it and the number I received in my office, which ALDERSON REPORTING COMPANY,INC.
781-791 I
was eight or nine, were those who are immediately involved in 2
the case.
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JUDGE BRENNER:
Mr. Kelly is immediately involved 4
in the mse.
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MR. BRONN :
Well, I didn't know.
I never even h
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heard of Mr. Kelly.until three minutes ago, and when he R
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introduced himself, then I told him he would get it.
M 8
8 JUDGE BRENNER:
And Mr. Shapiro.
He was here G
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during the prehearing and he said he was representing New zo 10 a
York and we involved him in the emergency plan.
II MR. BROWN:
Well, I didn't remember until you 3
g 12 told me that now.
I really didn't meet him.
If I did, I don't 5a (Jg g 13 remember.
I apologize.
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14 JUDGE BRENNER:
Mr. Kelly, you were a little late g
15 in your appearance.
Do you think that your colleagues at m
j 16 State received it?
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I7 MR. KELLY:
No, no.
I made the check for it.
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18 JUDGE BRENNER:
All right let's get it to him by P"
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next Tuesday.
n 20 MR. BROWN:
I told him I would get it to him by 2I the break.
It is much to do about nothing.
22 JUDGE BRENNER:
Right, well, I don't know why this 23 lengthy a time period progressed.
In addition, Mr. Shapiro 24 should clearly have received one.
25 '
MR. SHAPIRO:
I understand that and I am satisfied ALDERSON REPORTING COMPANY, INC.
792 1
that I am going to get one.
2 MR. SHEA:
Judge Brenner, may I say something?
3 If Mr. Kelly has not yet received a plan, I don't quite A)
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4 understand the meaing of the ' tatement earlier that the s
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State believes now based on what it has received, which I h
6 thought was this March 30th filing, that it had enough R
7 information to develop a site specific proposal for Shoreham.
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8 In addition, you had some confusion about FEMA's d
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representation here.
Mr. Glass, and who Mr. Glass represented, 10 and I would be glad to find out who Mr. Kelly really represents s
11 and how he plugs into the State system.
Who reports to him k
j 12 and who he reports to, to make the statements today that he 5
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13 did.
h 14 MR. KELLY:
I would be very happy to.
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15 JUDGE BRENUER:
No, I am not going to go into x
y 16 that type of thing.
That is not going to help us at all.
w 17 MR. SHEA:
I think it does.
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18 JUDGE BRENNER:
I disagree.
19 MR. SHEA:
I would object.
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20 JUDGE BRENNER:
Absent some specific indication 21 that he doesn't represent the party for whom he has filed 22
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an appearance and is appearing, I am not going to go behind 23 that.
24 MR. SHAPIRO:
Judge Brenner, the point is the 25 '
other point that Mr. Shea made was what is the basis for the ALDERSON REPORTING COMPANY,INC.
793 1
representation that the State could produce a plan by a certain 2
date when it hadn't seen the County plan yet, which in itself
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3 is a massive document.
I think that. is an important point.
4 JUDGE BRENNER:
We,ll, I don't understan'd that either e
5 but I am not going to go into it now because it is not going h
6 to be pertinent to our immediate needs.
9 7
The immediate subject area that the Board described 8
8 as I understand it, except for the design review of sirens d
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by FEMA, it is going to be done by the NRC staff.
There i
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12 We are not going to be in a position to schedule the filing of 5
13 any testimony until we get closer to that completion date.
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14 Now, we can talk about a schedule that is keyed 2
15 off that date, but there is no point in doing it now.
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16 However we can talk about the scheduling of the w
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JUDGE BRENNER:
You need to clear up this problem,
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and the schedule was news to us today, notwithstanding the
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4 fact that we asked for a schedule filing before.
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we should have received in the filing from the Staff that we Rg 7
asked for.
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8 We wouldn't require the filing of testimony until da 9
after the Staff appraisal would be issued.
If that doesn't i
h 10 come out until after, the appraisal is going to place, we 3
5 11 estimate at the end of July.
I don't know when the write-up d
12 will come out so we are already into September before we could 3m 13 require testimony at the earliest.
So that solves your problem
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16 issues because me well be still litigating other issues in e
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5 18 we shouldn't.
E 19 However, we can get contentions filed and there-1 20 after all discovery on those contentions except without 21 prejudice to the right to get new discovery and in fact new i
22 contentions if there is new information in the Staff's on site 23,
appraisal.
As is common, LILCO's appraisal and the plans are 24 here and the analogue to other areas would be on the basis of 25 LILCO's documents, contingents would be filed, subject to the ALDERSON REPORTING COMPANY,INC.
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right to add new contentions or new discovery after the Staff's 2
review cf documents come out.
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require them to come forward with testimony and then have them (a~')
e 5
worry about adjusting their testimony after the Staff's 5
2 6
appraisal.
So the Staff's appraisal is going to be the date e
7 from which the rest of the schedule can be contemplated.
8 We would require the filing of contentions to be da 9
June 20th.
We picked that date because we started liking the i
h 10 20's but let's make it the 22nd which would be Tuesday.
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11 MR. SHAPIRO:
Judge Brenner, may I interject please?
d 12 You seem to be going, as I understand the direction now, in the 3e fs 13 direction of directing contentions and taking up the four or five
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2 15 wholly apart from the completion of emergency plans.
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19 JUDGE BRENNER:
Actually we spent quite a bit of M
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21 MR. SHAPIRO:
Yes.
I'm not suggesting otherwise.
22 The point that at least the Northshore Community O
23,
wants to make and although it is elaborated on in our submission 24 is that we just don't see how you can comply with the standards
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biforcating and isolating discreet elements of the emergency
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2 plan by saying or by characterizing or accepting that some of 3
them are on site as distinguished from off site.
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4 JUDGE BRENNER:
We didn't use that distinction.
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We are looking what is within LILCO's responsibility to perform M
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whether it be on site or off site.
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7 MR. SHAPIRO:
Well, then that merely underscores s
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my point I think.
If you are not making that distinction then d
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by implication there has to be the relationship between affects d
9 oy 10 on site and affects off site of LILCO's actions, to use the 3
5 11 phraseology that the Board has been using today.
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13 elements of those actions and an attempt to understand them
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14 and respond to them and prepare contentions for them separated 2
15 from their affects of these actions off site when by all that's 5
y 16 been said here this afternoon, the County Plan is not in place, W
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18 place, leaves the parties at a loss as to how to proceed.
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19 importantly it seems to violate both the spirit and the letter g
n 20 of the Regulations.
21 It seems to us at the Northshore Committee that i
22 the critical and better thing to do and in a sense the more 23 efficient thing to do is to wait until a plan is in affect, l
24 submitted by the County and the Staff appraisal has come through.
25 I Then when a position to address the entire Plan as a package and ALDERSON REPORTING COMPANY, INC.
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as a whole and to give a reasonsed response and a reasoned
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Otherwise, we are just approaching a piece 3
meal fashion which I'm afraid is not only not going to meet
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9 6
So I strongly urge the Board to reconsider what R
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apparently is its decision to separate out these elements.
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8 I may add that our Northshore's position approached dd 9
the, as evidenced in its April 13th submission, dealt primarily 5,
g 10 and almost exclusively with the Shoreham Annex to the State 11 Plan and therefore dealt with off site.
But I am not by that B
j 12 be deemed to have waived any on site, so to speak, actions 5"
5 I3 by LILCO.
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h 14 JUDGE BRENNER:
We agree with you substantially h
15 that many issues cannot be determined on the basis of the m
g' 16 information in LILCO's Plan and there is an overlap in many w
f 17 areas under the planning criteria.
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18 We further agree with you that many of the items E
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listed in your filing which was based on the annex to the State n
20 Plan cannot be litigated at this point.
21 The contentions we are calling for now and because 22 (3
of that for compliance with the Regulation, could not be V
23 determined on the basis solely of what we have in existence 24 now that is the final LILCO Plan.
25 However, the area described by us and they weren't ALDERSON REPORTING COMPANY,INC.
798 1
meant to be Board issues.
They were meant to be a description
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2 of the area within which we are requiring contentions to be 3
filed by July 20th because that information in the form of
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4 the LILCO Plan is available.
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So all issues based on LILCO's action, and we gave U
6 you some particular examples but those weren't the exclusive R
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June 22nd and we indicated what would be included.
That would d
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also include the siren system as we indicated as to its proposed
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10 placement and so on.
Then subject to the information being g
11 filed approximately on the day at LILCO estimated it would be a
p 12 filed.
We can make partial findings.
E 13 MR. SHAPIRO:
Excuse me.
What was that date?
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They said two weeks.
The map would E
2 15 be ready earlier and then the rest in two weeks.
g 16 MR. SHAPIRO:
Could I say something if you are m
i 17 finished?
Y 18 JUDGE BRENNER:
Well, I'll just conclude by saying E
19 g
we have a responsibility where we can, to make partial findings I
l 20 when the information is in existence and that information is 21 in existence.
Why should we wait a year and find out that we 22 reject protions of LILCO's Plan a year from now when we can l
23 find those defects if they exist and reject them now.
24 7-)
MR. SHAPIRO:
You might find to the contrary, I
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25 Judge Brenner, they may work out.
You may accept them now and l
ALDERSON REPORTING COMPANY, INC.
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7.9.9 I
find that when you are look at the review plan, you may have 2
to reject the findings that you made at this point.
That is 3
precisely my point that there cannot be a reasoned conclusion 4
and a reasoned analysis unless,it is an integrated whole.
m 5
I will not repeat arguments except that I press Ul 6
them very seriously.
R 7
JUDGE BRENNER:
We are going to be restricting the s
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focus to LILCO's actions, where those actions are not dependent d
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upon coordination with the County.
It's solely from LILCO's z
h 10 end.
At least one case I'm familiar with as I've indicated 3
h 11 before, is that Three Mile Island Unit Re-start Proceeding.
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12 If you look at the emergency planning findings in that proceeding 5
13 there is analytically an ability to make findings with respect 14 to the utilities plan and their actions and then with respect 15 to the off site agencies and their actions.
Then in the third j
16 category with respect to the coordinated actions.
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17 In the end you have got to put it all together 18 to make the overall finding of compliance or non-compliance E
19 g
with the Regulations but that doesn't mean you can't have the n
20 interim findings first which may or may not lead up to those 21 ultimate findings later on.
22 MR. SHEA:
Judge Brenner, just to take as an example O
23 ;
the very first area that you want us to develop contentions on, 24 that first area being actions by LILCO on site or off site 25 '
regarding communications with off site agencies.
That's a ALDERSON REPORTING COMPANY,INC.
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perfect example of an area that I don't believe we should go forward with until we have a County Plan which identifies 2
the off site agencies that will be identified in the county's 3
4 part with the organization of personnel.
The County's e
5 communication needs, I think you are going to do the parties l
6 a great disturbance and you are really going to produce a very R
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poor record on such issues if you try to go forward with them M
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now.
This fragmentation, I think, will come back to haunt you.
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We are going to have re-litigate issues.
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10 I could say very much the same thing about the isj 11 third area.
We don't know what the County's needs will be in is g
12 terms of monitoring releases off site.
We need a careful, 9
13 O. g site specific review by the County and that will be forthcoming.
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14 I feel very strongly about the fourth area as well, E
2 15 the warning system within the 10 mile EPZ.
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16 I would like to ask the Board, when you say you have rA d
17 a responsibility to make these partial findings, are you talking
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18 about under this legislation that is being developed?
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JUDGE BRENNER:
Yes.
Also under the proposed n
20 Regulations and also in terms of litigating that which can be 21 litigated as opposed to taking hiatus for almost a year and i
22 then coming back.
O 23 MR. SHEA:
Judge Brenner, I dispute your authority 24 to force us to litigate issues pursuant to legislation that O
25 hasn't passed and pursuant to proposed Regulations.
ALDERSON REPORTING COMPANY. INC.
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Well, even in the absence of those 2
Regulations we can go ahead on partial issues where the informa-3 tion is available indicating that those proposals, which although O
4 when 1 1est tooked, there was not en authorization ecc.
That ie.
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they were two separate Bills but on this point the Bills were d
6 in agreement so chances are good that they Act will be issued Rg 7
I issued that as the reason as to why we want to go ahead and Nj 8
be in a position to be able to make the findings one way or d
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the other.
We would go ahead and litigate what we could to
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10 the extent it was available now.
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11 We don't believe there is going to be a great is j
12 redundancy with respect to communications.
For example, as 5
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14 that was complete.
2 15 MR. SHEA:
There is no County Plan.
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16 JUDGE BRENNER:
WEll, with respect to the County's us
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17 Proposals.
5 18 MR. SHEA:
Are you saying that we have to litigate E
l 19 this draft document, this pr.oposed--
20 JUDGE BRENNER:
No.
YOu have to litigate what 21 LILCO is planning to do in terms of how they will notify the 22 off site agencies.
If you want to file a contention that we l
23 cannot now make a finding as to how they can notify off site l
l 24 agencies until we know a, b, and c, you can file that contention 25 but I want to see if the contention is on there.
l 1
i ALDERSON REPORTING COMPANY, INC.
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MR. SHEA:
I see this as just generating a tremendous I
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2 amount of paperwork, imposing tremendous burdens on the parties 3
in this proceeding.
You have already imposed unrealistic
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In fact, before we e
5 return today, SOC would like to make a motion concerning the A"
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schedule.
I believe that on this most sensitive issue of R
7 emergency planning, you are going to the parties and the people s
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of Suffolk a great disservice if you forge ahead and try to d
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thrash out these issues without the suffolk County Plan.
-icg 10 JUDGE BRENNER:
Well, Mr. Shea you are mischaracter-11 izing what we are doing.
We are talking about litigating the w
y 12 existing LILCO Plan as opposed to waiting a year because it 5
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might be convenient to litigate that when the County Plan is 13 14 ready to be litigated.
We are not litigating the evacuation 2
15 within the area which is dependent on the County Plan.
So 5
16 you have chosen to mischaracterize what we are doing.
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18 contentions be filed by June 22nd.
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n 20 contention that, and this is typical of a contention, that 21 information is lacking in the LILCO Plan on that subject 22 because until the County Plan is developed that information 23 won't be there, you should include that in the contention and 24 we will be able to consider that point in that context.
25 We want the emergency planning contentions to be ALDERSON REPORTING COMPANY, INC.
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labeled, EP for emergency planning and then have a series of I
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just numerical 1, 2,
3, and so on.
We want a consolidated 3
filing from the parties concerned which I guess is the County, O
4 soc a"a "sc-
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5 want the convenience, we want filings so that we can have a A.
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6 seriatim listing of the contentions.
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After each contention you can indicate which party i
8 is proposing that contention.
It might 1, 2, or all three d
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parties on those contentions.
That would obviate redundant 7:
h 10 contentions which are really the same contentions but have iG 5
11 minor word differences.
You are not being consolidated as a is 6
12 group.
It's a convenience filing.
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y JUDGE BRENNER:
We will also require that the
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parties and the Staff and LILCO meet among themselves informally 2
3 Prior to that filing of that listing of contentions before
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4 the Board so that we can be in a position to indicate at the e
5 time of the filing whether there is an objection as to the hj 6
admissibility of those contentions or not.
You are not 7
required to thrash it out and reach an agreement forever.
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8 8
just want the indication of whether there is an objection or et de 9
not.
Hopefully you can so that with minor differences, you i
h 10 will do that.
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12 closer to that June 22nd day on those issues, once we rule Z-a
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We would require now that all m
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All parties should have
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15 all the pertinent documents.
I would suggest that parties 16 talk to each other and ask what supporting documents are 3
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17 available and just basically open up the file to each other
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We will get down to discussing 19 schedules for interrogatories and depositions thereafter.
n 20 It's been my limited experience in emergency 21 planning, the details of that issue that informal discovery 22 conferences, it's just the type we've directed for security 23 planning will also be very helpful for emergency planning.
fx 24 That is, you can focus on the information that's available A
25 l about having meetings with your experts and so on.
We are not ALDERSON REPORTING COMPANY. INC.
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going to preclude interrogatories in the area of emergency
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3 in security planning but we think you ought to be able to cut
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In terms of testimony, we'll keep an eye on the A
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issued their assessment.
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course of these next months after the contentions are admitted d
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will be focusing on preparing initial drafts for themselves ie g
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3 11 take.
Then we will set a testimony filing date as I said j
12 after the Staff's final review.
It is likely to be month or 3
13 so or actually a little longer.
We will look at the schedules r"
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l f4 then.
It depends also on what is going on with the other issues 2
15 and whether we are still litigating them or have completed them N
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17 We would as between NSC and SOC, those two parties 18 to select one attorney who would be an emergency planning 5
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20 notificati.on and that type of thing, and who would in turn 21 contact the other party.
22 We will include you all on conference calls and so 23 on to the extent necessary but sometimes there is just a brief 24 notification that need be made.
25 As I indicated earlier, as we get closer we are i
ALDERSON REPORTING COMPANY, INC.
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g ing to require a very close coordination between SOC and NSC
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2 on emergency planning.
Although we are a long way off from 3
it now, I probably will require one cross examination and that
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MR. LATHAM:
Judge Brenner, I'm not sure I E
6 understand the purposes at this point, for purposes of setting 7
up a phone chain on this for Mr. Shapiro and myself to designate 8
who should receive the phone call.
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s jo and I don't think Mr. Shapiro does either, of having responsi-e 3
5 11 bility of making sure he is notified of these things.
I would B
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15 we are, and the question of coordination and organizing our E
16 presentation will be taken up later.
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d 17 JUDGE BRENNER:
We are going to be there with respect 18 to any conference calls to discuss substantive matters and so l
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19 on as we have in the past but frankly, it is difficult to get N
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If there 21 is just a quick notification that need come from secretary fs 22 or something like that, I want to be able to have on call made.
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If it's going to be any extensive type conference call i
24 discussion, of course, we are going to involve the both of you.
25 l MR. SHAPIRO:
Judge Brenner, it's true I might be ALDERSON REPORTING COMPANY, INC.
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difficult to reach but if it is the type of thing that you have
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9 and 5 that will take a message to that affect.
If it is
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5 it it a message that needs to be given, I should be available N
6 at a certain thing or something is going to happen at a certain e
7 time, there is no problem in getting my office.
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8 JUDGE BRENNER:
What about the fact that while we're d
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during the evidenciary hearing in June and July, if something i
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5 11 are here, we'll announce that some days in advance but I don't
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E 14 MR. SHAPIRO:
I am sure.
You anticipated something Ux 2
15 that I was going to allude to.
Obviously I do not plan to be 5
16 present during the other evidenciary hearing, but I have no
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I
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19 don't think it has to be formalized.
8n 20 JUDGE BRENNER:
We'll skip the lead coordinator.
21 If the need arises, I will ask Mr. Shea or Mr. Latham as to 1
i 22 that particular area to contact you.
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23 MR. BROWN:
Judge Brenner?
24 JUDGE BRENNER:
Mr. Brown, is that estimated 25 i scheduling in your letter subject to how much change do you ALDERSON REPORTING COMPANY, INC.
808 1
think with the filing of the report with the County Executive 2
sometime in September?
3 MR. BROWN:
There is one change because of a (3
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4 requirement of Dr. Johnson and Dr. Erickson and an exchange of e
5 notes is either underway or it has been completed between M4 j
6 Mr. Cohalan and Mr. Jones.
That September 15 day, is October 1 R
7 as the latest.
The reason is that the contribution of the j
8 Erickson/ Johnson work will not be timely to the Voohees people d
9 unless the Voohees people have an additonal two weeks.
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11 discussing the -former SOC contentions 1 and 2, that if you 3
l 12 don't think it is material to go into the particular accident E
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13 analysis for purposes of developing the particular plan according 14 to individual site as distinguished from the overall analysis 15 that went into the rule.
So we may get into some discussion g'
16 as the County Plan develops as we approach September to see e
d 17 what your draft plan looks like and what matters are to be 5
18 litigated before us as distinguished from matters that the l
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20 the parameters that we set for our hearing.
l 21 MR. BROWN:
I would just like to make three quick
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points.
Certainly you know two of these but the third one 22 23 that just came up, as this plan is developed, LILCO is a 24 member of this community and I have a feeling that they just l
25 might agree with whatever the zones.
California, the utility ALDERSON REPORTING COMPANY, INC.
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agreed with a 16 mile planning zone and there was no argument
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over that.
2 3
The important points though, wouldn't it be helpful
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which aren't before we decide which ones are appropriate for e
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filing?
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8 JUDGE BRENNER:
No.
Not before us now.
We've n
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Those are 3
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If you want to B
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14 free to do that.
2 15 The parties have been very good generally about j
16 communicating with each other and it is not necessary to have W
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18 MR. BROWN:
The final point that I've got is some-5
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l 20 pertinent quotation from NUREG 0654 which states that NRC r
21 and FEMA have deliberately consolidated in guidance intended
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23 guide the emergency planning and preparedness of activities 24 of NRC licensees because of a shared beleif that an integrated (v~}
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2 health and safety of the public.
I underscore the following, 3
NRC and FEMA recognize that plans of licensees, state and local
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4 g vernments should not be developed in a vacuum or in isolation from one another.
Should an accident occur, the public can e
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be best protected when the response by all parties is fully o
7 integrated.
It is in the spirit of that and with NRC and FEMA 8
Language, central to the thinking of the County, that we find N
it very difficult that the utility, LILCO, or anyone else 9
7:
10 would suggest that the integrated development of the County Plan C
by gj should not dovetail with the development of the LILCO Plan.
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I think I've made that before so I'm not trying to 5
16 belabor it except to highlight the very language from the s.
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18 JUDGE BRENNER:
I don't think anybody disagrees 1
with it.
That is in order to meet all those planning standard 19 8n 20 in the Regulation and in terms of common sense also, all these 1
21 plans ultimately have to dovetail and be coordindated.
So that's 22 not the question.
The questions is, however, analytically, 23,
you litigate some issues before you litigate other issues.
l 24 We would do that even if it was all available now.
The question 25 was do we have to wait a year to litigate all the issues and I
l ALDERSON REPORTING COMPANY, INC.
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the answer we have concluded is no for the reasons we've
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That doesn't mean that when they are developed in 3
terms of new interfaces that they don't have to coordinate very
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Otherwise they won't work.
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MR. BROWN:
Fine.
I'm merely highlighting the fact Ee' 6
that the County Plan that is being developed is an opportunity R
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and really a propitious opportunity for the utility ot seize n
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and join this planning process rather than going down a different d
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road and insisting that something be litigated independently io 10 of this comprehensive planning process.
g 11 MR. REVELEY:
I think the problem, Judge is the 3
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13 time than we had anticipated.
We do not have any idea of l
14 whether or when the Legislature will approve the County Plan, A &B 2
15 It doesn't have to be a County approved plan as a matter of law.
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It can be replaced by either a State or utility generated plan W
6 17 so long as the ultimate plan meets all of the pertinent criteria.
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It is perfectly possible in the real world to E
19 litigate some of these issues witl** any material risk of g
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21 D.
No one is more interested than LILCO that there 22
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be an effective emergency plan.
23 i JUDGE BRENNER:
Well, one of your comments that
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25 utility plan, that's the subject of authorization that I referred ALDERSON REPORTING COMPANY, INC.
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1 to like big conference of parties and again in a conference rs(-)
2 call.
3 That I can tell you now, there is no information (D
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5 working on and that is the importance of local government and b
6 responsibilities and services to correct emergency actions off R
7 site.
Regardless of whether your statement is correct on the M[
8 authorization plan, there is no plan in existence by anybody d
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that covers that same subject matter.
I frankly have difficulty ic g
10 conceiving how there could be in the real world.
j 11 MR. REVELEY:
Let me put it more prolipherically a
p 12 then.
If no County Plan appears for whatever reason, that 5
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m 14 There are other means of producing the records in an emergency
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16 JUDGE BRENNER:
I don't know if that is correct w
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Bill but if you want to pursue that point at sometime, you are n
20 going to have to show us the basis on which we can make our 21 factual findings one way or the other.
I don't know how you
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22 are going to do it.
l 23 MR. BROWN:
County Court's disagrees with the 24
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characterization of what the law means as stated by Mr. Earley.
25 Even more importantly am somewhat surprised that something ALDERSON REPORTING COMPANY, INC.
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which everyone would have to recognize to be reserved by the 2
10th amendment to the people and the local governments, would
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3 somehow be subject to being irrigated through a utility or 4
some other level of Government.
This function of protecting
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the local people rest with the local authorities.
I would be b
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be put forth by Mr. Reveley or anyone else.
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8 JUDGE BRENNER:
I'll imply and just say directly d
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it's too abstract at this time.
If any party has something 7:og 10 they want to propose for the Board to look at, we will consider 5
5 11 the argument and the particular contacts.
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12 MR. REPKA:
Judge Brenner, on a different matter 5
7-l 13 the Staff--
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14 JUDGE BRENNER:
I promised Mr. Shap;ro that I would a
2 15 get back to him.
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16 MR. SHAPIRO:
The contention 7 (J) of the Northshore e
d 17 Committee as it was admitted back in 1976 or 1977, the evacuation i
18 and emergency plan proposed by the applicant are inadequate 5
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19 as evidenced by the failure of those claims to comply with 20 10 CFR appendix c.
I would like at this time to amend that to 21 include 10 CFR Part 50.47 9 (b).
22 JUDGE BRENNER:
It won't do you any good either 23 way.
You know from the way we have proceeded and as we have 24 indicated, either way the contention as specific as possible O
25 at the time it was filed is now no longer properly specific ALDERSON REPORTING COMPANY,INC.
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given the information that has been developed.
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2 So we understand the Regulations came out after you 3
filed it and you don't have to file a particular contention.
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4 Mr. Repka?
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5 JUDGE BRENNER:
Judge Brenner, the Staff seeks a 5
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minor clarification.
In your list of subject areas in which R
7 contentions are to be filed on the 22nd of June, you've s]
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determining factor on the following testimony in that subject G l 14 area.
2 15 JUDGE BRENNER:
That's our testimony filing date W
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We are talking about everything else but.
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24 If you expect us to require all parties to keep to
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a schedule and then you don't keep to a schedule--Is there a ALDERSON REPORTING COMPANY, INC.
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problem that you know of now?
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2 MR. REPKA:
Well, it has to be filed with us before 3
we can conduct a review.
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4 JUDGE BRENNER:
If,they are going to give you to
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you, we don't know if it is going to stamped, filed, or what?
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Hopefully they wiil put it in the right in box and FEMA can e
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look at it.
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I don't mean to be flip, Mr. Glass, I apologize.
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I think you are being overly bureaucratic about some of these 10 things.
We are going to treat FEMA not as some bureaucratic 3
5 11 agency but as the worth one way or the other of their expert g
12 witnesses and their testimony.
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It is our intent to accomodate wherever l
14 possible this Board but we do have certain filing requirements 2
15 that we must comply with and no matter how much we want to 16 comply with your deadlines, if the formal filing requirements g
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17 have not met, our hands are tied.
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18 JUDGE BRENNER:
That's not quite accurate because E
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n 20 filings and the testimony has been filed under the formal 21 document or whatever was handled after.
22 So what we are interested in is whether or not 23 you have the information before you, whether it is formally 24 filed or not, f^O 25 I promised you an opportunity for your motion.
Here ALDERSON REPORTING COMPANY. INC.
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it is.
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2 MR. LATHAN:
Actually, Judge, I think Mr. Shea 3
made the motion.
4 I just want to clear up one last matter on emergency P anning which I hope will be very brief but again, you may l
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have misunderstood my tone on my inquiry to Mr. Kelly.
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I'm in the spirit of some of the uncertainty er a
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confusion that has gone on here today.
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one matter and that has to do with the roll of this State in N
10 this proceeding.
I ask this just for this simple reason.
I'm 3
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It is the coordinated agency.
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13 Mr. Kelly is the Staff Attorney with the Public h
14 Service Commission officially.
The two recent letters that I 2
15 have from him, one on March 26th, is a letter on the Department 16 of Public Service Stationary, signed by the General Counsel j
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17 for the New York State Energy Office, signed underneath by 18 Mr. Kelly,on behalf of the PSC.
There is a subsequent letter
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19 April 9th signed on behalf of Mr. Kelly who is on behalf of g
n 20 the Public Service Commission and on behalf of the State of 21 New York.
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22 I think before Mr. Kelly may have mentioned to me 23,
that he signed it, entered a notice of appearance on behalf
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24 of the State Energy Office but maybe it was on behalf of 25 another agency.
So there are meriad agencies here and either ALDERSON REPORTING COMPANY. INC.
817 1
at this time or perhaps in a letter sometime in the very near 2
future, could Mr. Kelly advise the parties on whose behalf
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3 he is appearing.
What agencies are formally represented other 4
than the Office of Disaster Preparedness.
So that I also
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understand it, I believe the gentleman's name who was referred 5
6 to before as having reviewed the plans yesterday was Rg 7
Mr. Davidoff.
I just wanted you to know that he is from the M]
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I just wanted dd 9
to get those facts clear so I know who is who in the case.
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Your correct.
I did misunderstand 3
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I apologize.
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12 MR. KELLY:
I work for the Public Service Commission.
3 13 I was requested by the State Energy Office ot represent them 73V{
14 in this proceeding.
The expert witnesses to be presented by 5
2 15 the State of New York come from the Office of Disaster Prepared-5 g
16 ness.
I think that is all the questions there were.
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17 Mr. Davidoff's first name is Donald.
He is the 5
18 Director of the radiological emergency preparedness group
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19 that prepared the State Plan that Mr. Latham has with him gn 20 today and that I filed on March 29th.
21 JUDGE BRENNER:
After Mr. Shea's motion, we are 22 going to adjourn.
Hearing nothing else, that is it,
,b 23 Go ahead, Mr. Shea.
24 MR. SHEA:
The only matter I was going to raise O
25 was concerning August.
ALDERSON REPORTING COMPANY, INC.
i 818 1
MR. SHEA:
These are scheduled events that go l
O 2
They ere both re1eeed.
tee me meke motion concerning the 3
schedule on them.
Then Mr. Brown can make his.
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4 I think that all the parties will agree that we e
5 have been stretched to our limits by the Board's schedule to N
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date.
,The burdens upon us are only going to get worse as we Rg 7
approach the months of May and June.
So far the breaking up s
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I think has worked out very well.
10 We believe that it would be helpful to take E
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The May 25th filing, is j
12 split that in half.
Half of the issues on May 25th and the E
13 remaining half of the May 25th issues, later in July.
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2 15 We also believe that.it would be appropriate during E
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17 a week break to allow the parties to get the paperwork out.
5 5
18 Otherwise this is just going to be a ridiculous P
19 forced March that is only going to produce poor testimony, 20 poor cross examination.
21 22 0
23 24 25 ALDERSON REPORTING COMPANY, INC.
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1 JUDGE BRENNER:
Do you want to file it in July?
2 liR. SHEA:
The end of June would be okay.
3 Half of the May 25th filing and half the filing here, and give
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us a week or two break at that time so that we can adequately
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6 type of testimony long distance over the telephone here and Rg 7
there, and Federal Expressing copies that are getting only M
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the briefest review.
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JUDGE DRENNER:
I wish you had raised this earlier i
10 because I would have had an opportunity to discuss with the E
5 11 Board and hear argument on it.
d 12 It will take a second now.
(Off the record.)
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13 Well, as to the request to take a hearing break
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14 in June or July, we are going to deny that.
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15 stay with the hearing schedule; however, as to the request 16 to delay some of the filing of the May 25th testimony, we g
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17 would be willing to delay a little bit until approximately E
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19 that testimony in July anyway.
I agree with you that the 20 sequence does appear to. work out with the other things that 21 are going on, and it doesn't seem to.
But my problem is that 22 you are going to have to agree on the order in which you,
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23 all parties, want that testimony to be tried.
24 MR. SHEA:
We have done that before.
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25 JUDGE 3RENNER:
It is hard for me to calculate ALDERSON REPORTING COMPANY, INC.
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quickly to make sure there is enough testimony to keep going
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Let's pick a date 3
we can delay it to and see how much of the testimony you are 4
delaying.
What do you want to do?
I don' t want it to dribble in g
5 I don't think that helps you either.
0 6
We can go to approximately one month so that would R
7 be Tuesday, June 22nd.
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something that was originally due in May that now it will 10 complicate your June filing.
That is exactly the reason we E
j 11 didn't want to sequence it out too far in the first place.
k 12 MR. LATHAM:
That is exactly why we felt that
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13 a one week in the middle of ten or twelve weeks in there a 14 one week break would be in there ten or twelve weeks of 2
15 testimony would be extremely useful.
16 If we don't take a break and we go through to the js d
17 6th of August, that is what I am suggesting that we take a 18 break in a dozen weeks of testimony.
The only reason we have E
19 a break is that one of the Board members has a vacation g
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20 scheduled which I applaude and wish we could get.
21 JUDGE BRENNER:
It wasn't the only reason.
We
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22 felt we would pick a week for a break there so that everybody-l 23 could schedule whatever they wanted to in that period and far 24 in advance we indicated the uniform schedule that was convenient
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25 and to pick that one week if we are going to take any week.
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The schedule could have been cancelled, so your characterization 2
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a period at that point because it was a period that was already 4
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Now, we indicated what we would do; we would delay until a
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June 22 the filing of some of that testimony.
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13 What would.come up last, problably the QA matters?
l 14 MR. LANPHER:
I think so because it probably 2
15 involves the geatest review of documents.
j 16 JUDGE BRENNER:
I think--what about tha t, that A
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18 MR. LANPHER:
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2I JUDGE BRENNER:
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23 matters in contention, although we can do that also.
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1 25th of May.
He want the order of all the litigation testimony
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12 Do we still have to hear about August?
c r-13 It may be August before we get out of here.
U) h 14 MR. BROWN:
That is right.
I will try to be on 2
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I have a whole series of points.
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18 JUDGE BRENNER:
For the rest of the month?
E 19 MR. BROWN:
Right.
g 20 JUDGE BRENNER:
Right now, as you know, we have 21 a hiatus scheduled from the 6th through the 16th.
22 MR. BROWN:
That is right, and I am suggesting 7-U 23 that the following two weeks really, and I have a few reasons.
24 The one that really puzzles me, though, is that given the i
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one which is so swift and expeditious and as organized as l
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under a schedule which is impressive, and I don't mean that O
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JUDGE BRENNER:
We had this conversation on the d
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record before.
10 MR. BROWN:
That is right.
11 JUDGE BRENNER:
For the past eight months there is j
12 were a lot of things that were supposed to have been done 3
Q 13 that apparently were not done, but let's not denigrate.
h 14 MR. BROWN:
It is just important to make the 15 point again.
You see, the NRC could have~ held this hearing.
j 16 This is a two-edged sword.
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17 this long.
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18 he delayed.
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20 and take the burden of delay, let's look at every fact and 21 then weigh it and be fair.
22 The NRC sat on its hands.
Now we cannot be in a 23 ;
position of bearing the brunt of what the NRC, your predesecor 24 may have done.
You certainly don't share any of that.
You are 25l the most expeditious judge that I have dealt with period and ALDERSON REPORTING COMPANY, INC.
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thus I want to make it clear that nothing of what I am spying 2
is personally related to you.
What concerns me though is that 3
I know the basis of a schedule which is going to pose more and
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think Mr. Cohalan said last night, we are questioning wether o
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we are going to be able to have a fair hearing and due process.
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We do not say these words lightly.
Our law firm d
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has 125 people.
I can add additional people without any 10 difficulty.
Mr. Latham can't do that.
But what I can't do E
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13 matters.
We have to be involved in it, and because of the m
l 14 fact that we have to draw upon the same consultants repeatedly E
2 15 because there is a limited market in consultants who are s
y 16 prepared to work for a side contrary to the views of a A
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20 and counsel was being put into the position where we.. are 21 frankly going to have to tell our own client that we are not 22 justly representing them because of this.
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where we have been, because of the press of things, unable to 24 25 '
put forth the contention.
The Board through a pre-hearing ALDERSON REPORTING COMPANY, INC.
825 4
1 conference generously had given its perspective of its dealings 2
on the matter of delay and permitted us to take a look at 3
seismic matters and to offer something, and.we very strongly 4
tried to do it, and we weren't able to.
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judgement whether we wanted to talk or something.
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and more.
You will notice the pleading that we filed today xo 10 which got to the point of emergency preparedness and we are 11 content with that.
We feel that the County has been represented is y
12 well with respect to our own ability on this.
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13 JUDGE BRENNER:
I'll share that, that the County h
I4 certainly has been represented well.
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15 MR. BROWN:
But what concerns us is the fact that a:
16 gi it wasn't organized as well as we wanted it to, and you will us
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18 It would ave been better for the Board to see that.
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20 to put some arguement into that as to why we felt that the 21 matters were interrelated, and what you saw from us was just 22
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a blanket statement that everything is interrelated and we 23; were stuck with that knowing your view as a lawyer that 24 it is an obstruction.
20 JUDGE BRENNER:
I will let you conclude, but I l
1 ALDERSON REPORTING COMPANY, INC.
826 I
want to interject for amoment that there is always a balance p/
s-2 betwen the perfect and the dictates of a schedule, with an 3
aside that I think that sometimes appellate courts understand
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orders better too, but the idea was to get the substance into R
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it and issue them so the parties could have the information 0
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10 which your point is that in August the point is going to go E
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I2 MR. BROWNi It did in one instance for sure 5
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13 with regard to seismic and it continues to.
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14 this, if there is concern with respect to something that E
9 15 we can appreciate with respect to a fuel load date or anything
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else that would jepordize this kindof a heavy burdensome 16 w
d I7 schedule, we should get it on the table, because LILCO has s
18 said it is ready to load _fug1_in.. September.
I said December, P
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n 20 If that is going to be a central consideration 2I for a sheedule, and I am not saying that it is, but we ought 22
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to really just vote yes or no among the parties just counsel 23 and get a determination and then let the schedule go if 24 that is what the Board feels is the criteria.
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25 It hasn't said that yet, but that is a criteria ALDERSON REPORTING COMPANY, INC.
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and in fact Mr. Cohalan wrote a letter to Chairman Palladino 2
and an answer came back from the General Counsel of the Commission 3
stating no indeed we are not tied into the double date.
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5 situation and we are frankly telling you that the consultants A.
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it, to represent our client properly, and what we ask you d
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therefore is to take a very modest break which also coincides io G
10 with the normal vacation schedule of people who are working s
j 11 very hard in these proceedings and to extend the one for j
12 an additional two weeks to the end of August.
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13 We would be prepared--the Board had reason to m
h 14 want to impose upon us why there has to be compensating dates 2
15 subsequent to that to propose some. Ano obvious one is that s
y 16 September 1st we need five days.
Do we meet from 9 in the morn-w d
17 ing until 6:15.
I just think there is a basis for negotiation 18 that can take us out of a predicament which is certain to E
19 cause the Board consternation at some point because of all g
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20 the. consultants and the testimony going and it has already 21 caused us that consternation.
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22 JUDGE BRENNER:
I can tell you know it might be 23,
there is an occasional week depending on particular things.
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We are not going to schedule that in advance and it won't be 24 25 the norm.
You and the other parties will be very unhappy ALDERSON REPORTING COMPANY, INC.
828 1
with that kind of schedule.
You need time in betwan th3 week 6]
2 to do things in the office related to this case or other cases.
3 I think that schedule is more efficient than it would gain.
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19 perhaps we can adjust.
8n 20 MR. LATHAM:
Judge, why don't you discuss that 21 with the Board and while we wholeheartedly support Mr. Brown's
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22 request, we would ask you to through into the hopper the 23,
request that SOC put out for at least a one week break in 4
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one additional fact of Mr. Brown's the 150 person law firm 0
2 where there is some 250 lawyers that Mr. Reveley has access 3
to.
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5 very much that the Board take that factor into consideration E
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7 JUDGE BRENNER:
Well, the Board did consider the sl 8
June request, and if you add that so that ruling was made d
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after discussion, we will discuss the August matter, but i
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12 MR. BROWN:
Maybe we should put our request in 5
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13 writing and explain why the Board would deny it and use the 14 sch.edule.
2 15 JUDGE BRENNER:
You have said it a number of times, j
16.
Mr. Brown, and today I guess is the last day that I am going a
b' 17 to entertain the discussion coming from that perspective.
18 We have indicated several times, so it is ingenuous of you
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19 to say that we didn't say it, we are on a schedule so as to n
20 not decline one way or the other on a timely basis.
That 21 schedule that you refer to on the filing to Congress which 22
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we indicated to you as far as we are concerned, it was just 23,
somebody's standard assumptions to follow the Congress.
24 It is obviously incorrect.
I th: k it was October or something.
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even with the optimistic schedule of meeting everything
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2 in July.
A period after that for Board decisions already 3
gets us past October, so I don't know why you keep referring Cl 4
to it.
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MR. BROWN:
I didn't refer to that schedule.
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6 just said I hadn't seen a meeting move with such heavy burden.
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7 JUDGE BRENNER:
I don't know know what proceeding 2
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you are referring to but all the hearing I have seen in the a
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last year or two have run continuously, and I think your 3
10 offer of a'five day a week basis would be a much greater 11 burden on people in the proceeding.
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12 MR. REVELEY:
I won't say much because we have c
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13 had this same conversation ad nauseum.
I always say the z
5 I4 same thing.
This proceeding has been going on since 1976.
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liR. BROWN: The rulings have been made by the NRC.
n 20 JUDGE BRENNER:
All right.
I think we have exhausted 21 the subject.
We haven't denied your request.
The Board will 22
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discuss what progress we have made and I am not incluned to 23 preschedule that lengthy a break when we might still have 24 some testimony to be tried at that point.
25 l MR. LATHAM:
Judge, looking at your March 13th order ALDERSON REPORTING COMPANY. INC.
4 831 1
there was reference to the fact that the Board will separately
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2 be issuing an order on the denial for the construction 3
Permit contention.
Is that something that is in the works?
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4 JUDGE BRENNER:
Yes, you will see it in the future, tell you candidly I intended at that time to have it out by e
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6 now, but it is not.
I have given it a low priority in terms Rg 7
of responding to your other request.for motions and so on.
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8 We have issued a fair number of orders in this case, d
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You have the ruling so you know what it is so your appeal can rur..
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11 MR. LATHAM:
We wondered when in fact the constructic'n
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12 permit might be ordered,.or be formally extended,and when the Ec 13 NEPA findings may come out, etc.
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14 to us.
We would like to have the ruling at your earliest possibl w
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15 convenience.
g 16 JUDGE BRENNER:
I understand your request and I W
d 17 will tell you that I think you are entitled to that but we did 5
5 18 have to put things on a priority basis with the other orders.
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19 I will estimate that you will see it by the end of May and n
20 hopefully earlier.
All right.
Let's go off the record and 21 I want to discuss the room accomodations at theEdverhead 22 hearings.
.O 23 (Whereupon the hearing ended at 5:00 p.m.)-
24
()
25 ALDERSON REPORTING COMPANY, INC.
NUC:2AR REGUIATORT COMMISSION O This is Oc certify that. the attached pecceedings 'cefore the Atomic Safety and Licensing Board O is the matter of t Long. Island Lighting Co.
Shoreham Nuclear Power Statior.
Date-of Proceeding.:
April 14, 1982 Dccket,llumber:
gn_ m FIacer of Proceeding:
Haupaugge, New York were held. as. herei;r appears, and that this. is the original transcript therecf for the fil.e-of the Coc:missierr.
i l
l t
Robert E.
Mayer i
l OffL=ial Reporter (Typ.ed) i O
$dox -
./bmn Of ficial Reporter // (Signature) 1 1
O O
.