ML20093L242
| ML20093L242 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/26/1984 |
| From: | Mark Miller KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20093L226 | List: |
| References | |
| OL-3, NUDOCS 8407310337 | |
| Download: ML20093L242 (136) | |
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RELATED CORR;sPONDM$
UNITED STATES OF AMERICA pgg HUCLEAR REGLLATORY COMMISSION O
'A4 n,
Before the Atomic Safety and Licensing Appeal Board ?D n,
)
In the Matter of
')
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY BRIEF IN SUFFORT OF ITS NOTICE OF APPEAL OF THE JULY 10 ASLB ORDER DENYING PRODUCTION OF DOCUMENTS BY FEMA AND ISSUANCE OF SUBPOENAS TO THE MEMBERS OF THE RAC Suffolk County submits this brief in support of its Notice of Appeal of the Atomic Safety and Licensing Board's ("ASLB's")
July 10, 1984 oral Order denying Suffolk County's Motion to Compel Production-of Documents by FEMA, and to Postpone the Cross-Examination of FEMA's Witnesses, and for Issuance of Sub-poenas to the Members of the RAC (hereinafter, "ASLB's July 10 Ordar"). _The arguments and background materials contained in the Suffolk County Memorandum in Opposition to FEMA's Appeal and Request for Stay of May 18 Board Order Compelling Produc-tion of Documents by FEMA, dated May 23, 1984 (hereinafter,
" County's May 23 Memorandum"), the Suffolk County Brief in Op-position to FEMA's Appeal of the May 18 ASLB Order Compelling Production of Document by FEMA, dated June 1, 1984 4
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(hereinafter, " County's June 1 Brief"), and the Supplemental Brief of Suffolk County in Response to May 30 Appeal Board Order, dated June 5, 1984 (hereinafter, " County's Supplemental Brief") are not repeated herein but are hereby incorporated by reference.
For the reasons set-forth below,,the ASLB's July 10 Order should be reversed.
1 I.
The Facts A.
The County's May 8 Motion to Compel on April 18, 1984, FEMA submitted to the ASLB presiding over emergency planning issues ror the Long Island Lighting Company's ("LILCO's") Shoreham plant the direct written testi-mony of four FEMA witnesses.1/
The FEMA testimony was based largely upon the findings of a review and evaluation of the LILCO offsite radiological emergency response plan (hereinaf -
ter, the "LILCO Plan") by FEMA's Region II Regional Assistance Committee (hereinafter, the " RAC" ).
Upon receipt of the FEMA testimony, the County served upon FEMA a Request for Production of Documents (hereinafter, " Request") on April 20, 1984.
The 1/
Direct Testimony of Thomas E.
Baldwin, Joseph H.
- Keller,
~
Roger B.
Kowieski and Philip H.
McIntire Concerning Phase II Emergency Planning (hereinafter, the " FEMA testimony").., -
F County also submitted-subpoenas to the ASLB for issuance to each' member of the RACs requiring them to appear to be deposed.
The County noted, however, that it would not request that the
-subpoenas be issued unless depositions of the four designated FEMA witnesses were unsuccessful in revealing the bases for the conclusions contained in the report issued by the RAC concern-ing the LILCO Plan (hereinafter, the'"RAC Report").2_/
FEMA's ' delay in responding to the County's Request prompted the County to file, on May 8, 1984, a Motion to Compel Response to Request for Production of Documents by FEMA.
After the ASLB set a schedule for the parties to respond, the County received FEMA's Response to Suffolk County Request for Produc--
tion of Documents (hereinafter, " FEMA Response") on May 15 (one day later than the schedule set by the ASLB).
FEMA's Response identified 37~ documents which were being withheld on grounds of s-asserted executive privilege.
See FEMA Response, at 5-8.
In particular, FEMA claimed that the documents revealed pre-decisional communications pertaining to the RAC review pro-cess and thus required protection.
On May 17, 1984, Suffolk 1
County filed a Motion to Compel Production of Documents Identi-fied by FEMA on May 14 and 15 (hereinafter, " County's May 17 2/
Memorandum Explaining Suffolk County Discovery Requests Relating to FEMA, at 4-5 (April 20, 1984).
F
Motion"), requesting the ASLB to compel production of the 37 documents identified (but withheld) by FEMA, as well as all re-maining documents responsive to the County's Request.
B.
The ASLB's May 18 Order j
During a conference call on May 18, the ASLB issued its ruling on the County's May 17 Motion'and ordered FEMA to turn over to Suffolk County 30 of the 37 identified documents.
On the same day, the ASLB issued a Memorandum and Order confirming its oral ruling.3/
The ASLB found that FEMA had asserted a valid claim of executive privilege with respect to the 37 docu-ments at issue.
Nevertheless, the ASLB concluded that the County's need for the documents outweighed FEMA's need to pro-tect pre-decisional communications pertaining to the RAC pro-cess.
The thrust of the ASLB's ruling was that since the RAC review was clearly pertinent to, and indeed formed the basis for, the FEMA witnesses' testimony, the County had a right to probe the underpinnings of the findings contained in the RAC review.
Thus, the ASLB held:
[T]he FEMA findings of the RAC Committee are directly relevant to the issue in con-troversy in this licensing hearing.
In general, the parties should be permitted to 3/
Memorandum and Order Ruling on Suffolk County Motion to Compel Production of Documents by FEMA (May 18, 2984)
(hereinafter, " Memorandum and Order").
f. l
inquire into those findings and the procedures Which were followed to arrive at the FEMA consensus.
Only by probing those findings and' determinations, will the_ par-ties and the Board be able to assess the I
weight to be given to those findings and determinations in our review under 10 C.F.R. I 50.47(a)(2).
Memorandum and Order, at 7.
The-ASLB further held th'at:
[I]t would be unfair to deny the County ac-cess to the underlying documents and processes by which the RAC Report achieved its final fo rm.
[T]he County should be able to discover the underlying docu-ments that went into the formulation of the publicly disclosed RAC Report because the information sought appears to be reasonably calculated to lead to the discovery of ad-missible evidence.
[W]e find that the documents Which underlie the RAC Report are centrally important to the County's case in asserting that the LILCO Plan doen not com-ply with NUREG-0654.
We do not find that cross-examination alone, without access to these documents, will be equivalent.
Memorandum and Order, at 8-9.
The ASLB then ordered FEMA to produce 30 of the 37 identified documents.1/
However, pursuant to an oral request by FEMA's counsel, the ASLB stayed the ef-feet of its ruling until 5:00 p.m.,
Monday, May 21.
4/
The ASLB found that the County had not shown a compelling need for the remaining seven documents.
Memorandum and Order, at 9-10.
S-
.C.-
The Appeal Board's June 13 Order r
On May 21, FEMA filed with the Appeal Board a Notice of Appeal and Request for a Stay of an Order of the Atomic Safety and Licensing Board.
The Appeal Board granted FEMA a temporary emergency stay on the same day.
Following oral argument on the stay request, the Appeal Board extended the stay pending full
. briefing and argument of FEMA's appeal from the ASLB's May 18 Memorandum and Order.
In a June 13, 1984 decision, the Appeal Board reversed the ASLB's ruling.
In the Matter of Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-773, NRC (June 13, 1984).
The Appeal Board agreed with the ASLB that FEMA had properly invoked executive privilege with respect to the documents at issue, but disagreed that the County had dem-onstrated, at least at the time of the appeal, a compelling need to obtain the documents.
Id.,
slip op.,
at 15-16.
Howev-or, the Appeal Board also emphasized the preliminary nature and the narrowness of its ruling.
The Appeal Board acknowledged the County's right to ex-plore fully the underpinnings of the RAC review and the final RAC conclusions.
However, noting that depositions of the FEMA witnesses had been scheduled but not yet taken, the Appeal Board held that the County had not demonstrated that the,
--,=-. -
Y 11 l relevant information could not 'be obtained elsewhere -- for
' instance, through.the scheduled depositions..
Id.
Thus, the Appeal; Board. stated:
Obviously, the County is entitled to prebe
.the FEMA, findings, explore their bases, as-sessztheir accuracy,.and determine what re-liance should he placed on them.
.To that end, FEMA will make its spo,nsoring witness-es available for deposition and cross-examination.
They may be examined as to the soundness and reliability of the scientific assumptions or professional judgments underlying the FEMA findings.
While the County may well find it helpful to have predecisional materials -- -for im-peachment purposes or to reveal soft spots in the final testimony,. for example -- it has not shown that its right to explore the underpinnings of the FEMA findings and de-terminations cannot be satisfied without the documents it seeks.
1
_I_d.
The Appeal Board also gave weight to representations by counsel for FEMA that the FEMA witnesses would be " forthcoming" and that "the substantive bases or rzofessional judgments underlying FEMA's findings" would be subject to scrutiny during;
~
the depositions.
Id,., slip op.,
at 16-17.
The Appeal Board specifically noted, however, that if this were not the case:
'there may, of course, be an eventual need i.
to order release of the documents.
That can be done at a later stage, albeit with some compromise in efficiency and addition-al delay.
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4 Id,.,
slip op.,.at 18.
The Appeal Board also admitted that it had "some uneasiness over the blanket asser'.lon oy FEMA that release of'any or all portions of the thirty documents will have'a chilling effect on its operations,"
Id.,
slip op.,
at
. 23.
The Appeal Board concluded by restating its position that if the County was unable to get-the information it sought.
through.other means, disclosure of the documents would be warranted.
Id.,
slip op., at 25.
Thus, the Appeal Board stat-r ed:-
4 We emphasize the-preliminary nature of our conclusion and the narrowness of our hold-ing.
Upon deposition or cross-examination of the sponsoring witnesses, or the review of. documents voluntarily. released, it may i
appear that there are good and sufficient reasons to warrant disclosure, such as significant differences of opinion among members of the RAC on important issues affecting the adequacy of LILCO's [P]1an.
It may turn out that the sponsoring witnesses are unable to defend or explain 3
adequately the underlying bases for FEMA's determinations or reveal that they have relied to an inordinate degree on the views of others.. In such circumstances (and, perhaps, in others), the County may well be able~to establish a sufficientlf compelling need for the-underlying documents.
Id.,
at 25.
-(Emphasis added).
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D.
The Depositions Of FEMA's Witnesses Counsel for the County deposed FEMA's witnesses on June 27 and 29, 1984.5/
During the course of the depositions, it became clear that, at least initially, there was a substantial
' lack of unanimity among the RAC members on many of the findings contained in the RAC Report.
This fact was highlighted by notes-prepared at the suggestion of FEMA's counsel by FEMA wit-nesses Keller and Baldwin immediately prior to, and in prepara-tion for their depositions.
These notes, which were turned over to the County and the other parties and made exhibits to the depositions of Messrs. Keller and Baldwin, reflected, among other things, the number of comments received from RAC members on each NUREG 0654 element, prior to a meeting on January 20 with all RAC members in attendance.6/
This meeting, which was the only meeting of the RAC members assigned responsibility for reviewing the LILCO Plan, was chaired by Mr. Kowieski and led to the issuance of the final RAC Report.
Kowieski Tr.,
at 60-61, 83-85.7/
The Keller and Baldwin notes also revealed the
~5/
The County had no control over the timing of these deposi-tions -- counsel for FEMA represented that the witnesses were available only on June 27 and June 29.
6/
1&ua notes prepared by FEMA witnesses Keller ar.d Baldwin are appended to this Brief as Attachments 1 and 2, respec-tively.
7/
Cited pages from the deposition transcripts of Messrs.
Kowieski, Keller, Baldwin and McIntire are appended to this Brief as Attachments 3-6, respectively. _. _ _
l i
' number of RA'C members,who disagreed, at least~ initially with
~
the final RAC findings for each NUREG element of the LILCO i
' Plan.
Neither the Keller nor the Baldwin notes revealed, how-ever, the identities or agency affiliations of dissenting RAC members or the reasons for their dissenting views.
Mr. Kowieski, the RAC Chairman, also prepared notes in preparation for his deposition at the request of FEMA's coun-sel.
These notes reflected a breakdown of the total comments received from all RAC members, and a narrative description of those comments in disagreement with the final RAC findings.
Kowieski Tr.,
at 51.
Although requested by counsel for Suffolk County and New York State, the Kowieski notes were not produced to the parties, and Mr. Kowieski vas not permitted to discuss them during his deposition, under instructions from FEMA's counsel.
- See, e.g.,
Kowieski Tr.,
at 54-56, 103, 104.
The County attempted on many occasions during the FEMA depositions to ascertain the reasons for and the substance of the various RAC members' dissenting opinions on specific find-ings, but was unable to pursue its inquiry Clearly, it is im-portant for the County to determine which RAC members dissented from various RAC findings.
This is a critically relevant in-quiry because each RAC member represents an agency with a spe-cific area of expertise.
S,e e,
e.g.,
Keller Tr.,
at 57.
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it is important to determine Whether RAC members with expertise in a particular-area disagreed at any time with the findings _in the final RAC Report, if so, Why, and why those opinions were changed, overruled, discarded, or otherwise no't reflected in the final RAC conclusions.
Yet, counsel for the County was un-able to obtain answers to questions regarding the specific rea-sons or bases for RAC members' dissen' ting opinions, or the agency affiliations or areas of_ expertise of the dissenters, by the witnesses' lack of recollection about such dissenting opin-ions and by FEMA counsel's refusal to permit the witnesses to answer such questions.
For example, during the deposition of FEMA witness Baldwin, the following exchange took place:
Q.
And do you have any independent recollection?
Are you able to tell me which five agencies cr individuals provided this comments on Element A.-l.A?
A.
Not in specific detail, no.
Q.
Would your answer be the same for each NUREG element set forth on the seven pages of your notes?
A.
Yes, it would.
Q.
For each element of NUREG 0654, are you able to tell me, based on your notes or anything else, which agencies or individuals of the RAC were at least ini-tially in the minority with respect to how an item should be rated?,
1
A.
Which particular agencies, no.
I would not be able to do that.
Baldwin Tr.,
at 150.
Further, FEMA witness Kowieski was pro-hibited by' FEMA's counsel from providing the raquested informa-tion, even-though he could have refreshed his recollection by
-reviewing the notes he had with him at the deposition and providing the information sought by the County's counsel (see, e.g.,
Kowieski Tr.,
at 51-56,99-103, 117) as demonstrated by the following exchange:
5 Q.
Now, I would like you, Mr.
- Kowieski, if you would please, using the RAC Report, element by element, to tell me the members of the Committee who believed that the rating finally determined in the RAC Report who initially believed that was a correct rating?
Mr. Glass:
I object.
You are trying to get through the back door the same in-formation that you were tried to get through, and went up to the Appeal Board.
You are trying to have him identify prelim-inary statements that were contained on the original documents which were held to be subject to privilege.
You are trying to obtain the same, exact info rmation.
You are trying to have him identify which indi-vidual said, ' adequate,' and which individ-ual said, ' inadequate' on those preliminary documents, and the Appeal Board has upheld FEMA's position.
And I do not see anything at this point which indicates you are enti-tied to that information, or that there is any need for that information.
As to this particular question, it is my understanding -- correct me if I am l
12 -
i
wrong -- that you are asking him to identify for ~ you the positions of the indi-vidual RAC members as provided on their comment sheets to the RAC Chairman prior to the January 20th meeting.
If that is what you are instructing him to do, I am instructing the witness not to answer your question.
Mr. Miller:
Is your instruction the same if I asked Mr. Kowieski to identify representatives -- if I asked Mr. Kowieski to identify the agencies represented?
Mr. Glass:
That is the same question.
We ha'ce -- it is a very simple mathematical formula.
Mr. Miller:
Was your instruction not to answer the question?
Mr. Glass:
Let me finish my state-ment.
It is a very simple mathematical formula you have.
We have already provided you the names of the agencies and who the individuals are, so if he was to provide the answer to your second question, he would in effect be providing the same an-swer.
And, therefore, I am instructing the witness not to answer.
Mr. Miller:
I am talking about the position of the RAC members, including Measrs. Keller and Baldwin, in their writ-ten comments or otherwise, that were sub-mitted prior to the January 20th meeting, I want to know the positions of the members of the Committee with respect to whether they were in agreement or disagreement with the rating finally derived and set forth in the RAC [ Report] issued to the NRC.
Mr. Glass:
I am instructing the wit-ness not to answer the question.
You have had Mr. Keller here; you have had Mr. !
I
Y u took the opportunity Baldwin here.
o with Mr. Keller to inquire.
He gave you a listing of what his original ratings were, so.you have that info rmation.
And I am instructing the witness not to answer at this point.
Q.
[Mr. Miller: 3 Mr. Kowieski, you have been instructed not to answer my ques-tion, and of course I have to abide by that.
But I want to make it clear for the record that my opportunities to question Mr. Keller and Mr. Baldwin went to their involvement in the RAC.
Mr. Kowieski is here as Chairman of the RAC.
He had the information avail-able to him to tell me the members and their positions on the RAC; Mr. Keller and Mr. Baldwin both made clear they were not in a position to give me that information.
So, there is a difference.
Kowieski Tr.,
at 117-122; see also, Keller Tr.,
at 42, 69-70; Baldwin Tr.,
at 145-152; McIntire Tr.,
at 69.
Furthermore, the witnesses were unable to give meaningful explanations of the basea for the conclusions or opinions of individual RAC members, and they were unable to describe even what portions of the LILCO Plan the RAC members reviewed.
For example, during his deposition Mr. Baldwin testified as fo l-lows:
O.
But do you know what [ the RAC members] did to reach their conclusions regarding those elements of NUREG 0654? f
A.
It's impossible for me to get in-side of their head and to go through their thinking process.
Q.
I'm not asking you about their thinking process.
I'm asking you, do you know what.these people did with respect to reaching their conclusions and judgments regarding the LILCO plan?
[ Colloquy of counsel deleted]
BY MR. MILLER:
(Continuing)
Q.
Mr. Baldwin, do you know what members of the RAC, _ including Mr. Keller, reviewed to reach their conclusions and judgments as set forth in their comments?
A.
Yes.
They reviewed the plan, the implementing procedures and the Appendix A of the evacuation study.
Q.
And you specifically know that.
each member of the RAC and Mr. Keller did that; is that correct?
A.
Yes.
I know that each reviewed those various parts in order to be able to supply us with their comments.
Q.
Now, can you tell me what parts or portions of each of the four volumes of the total LILCO plan the-members of the RAC and Mr. Keller reviewed?
A.
I have no specific direct knowl-edge of those parts which each member --
how each member went about their task.
I have no direct knowledge of how each one went about reviewing their entire set of four documents, four volumes.
Baldwin Tr.,
at 42-43.
i l
!Similarly, Mr. Kowieski was unable to describe the bases
'for the conclusions or opinions of the RAC members:
Q:
Mr. Kowieski, are you able to tell me What the members of the RAC Commit-tee did.in preparing their comments that were submitted prior to the January 20th meeting?
A:
I don't understand your question.
Q:
Well, you have told me that what you did in your review with respect to the RAC review process was that you reviewed the LILCO Plan, portions and parts of the LILCO Plan, correct?
A:
At what point?
At a certain point, yes.
Q:
Okay.
Now, those members of the RAC Committee Who provided comments that were used at the January 20th meeting, do you know what they did; for example, What they looked at and reviewed in order to make determinations as set forth in their comment that was sent to your attention?
A:
I can tell you the four volumes of the LILCO Transition Plan, and NUREG 0654.
They used their professional judg-ment, expertise, based on their educational background and experience gained in the past.
Q:
Do you specifically know that the only thing the members of the Committee used in their review were the four volumes of the LILCO Plan?
A:
If I know?
Q:
Yes, sir.
A:
They were requested to provide comments on the LILCO Transition Plan, Re-vision 3. I
Q:
Do you know, though, what they actually did do in_providing their comments I
to you for use in the RAC review process?
A:
They did not advise me otherwise-when they submitted comments to me.
t Q:
I want to repeat my question.
Do you know, specifically know, what members of the Committee did in preparing their comments on the LILCO Plan that was sent to you?
A:
They --
Mr. Glass:
This is getting back to the same situation which was gotten into in the three prior instances.
If you are asking Mr. Kowieski was he present, and did he watch what each individual did, so that he can 'then say for a fact that he saw the person open and read all four volumes and NUREG 0654, you can understand his hesitan-cy to be able to respond to such a ques-tion.
BY MR. MILLER:
(Continuing)
Q:
I am sure, Mr. Kowieski, that you did not watch the memberc of the Committee in what their review consisted of, is that correct?
A:
No, I did not sit in their office i
and watching them review the LILCO Transi-tion Plan, Revision 3, that is correct.
Q:
Did you ever specifically ask any member of the Committee, including Messrs.
Keller and Baldwin, what they did in reaching their conclusions and judgments regarding the LILCO Plan?
A:
At the meeting I asked -- at the January 20th meeting, okay, if, for in-stance, an issue came up, if they review, for instance, Appendix A.
Basically I would insult their intelligence by asking, say:
Have you reviewed the Plan.
Did you base your comments on the Plan?.
4 e
i Because, you know, those people are professional individual, and are being des-ignated by their respective agency to as-sist FEMA, and I have to maintain a certain relationship.
I cannot insult them by asking them a very obvious question.
Q:
Yes, sir, I understand.
Did you ever specifically ask any member of the Committee, however, if they reviewed any-thing other than the LILCO Plan?
A:
No, sir.
Q:
The answer is,
'no?'
A:
Yes, sir.
Kowieski Tr.,
at 104-107; see also Kowieski Tr.,
at 45-47, 107-108; Baldwin Tr.,
at 35-45, 155-156; McIntire Tr.,
at 71-72.
Furthermore, the County was not permitted to complete the deposition of Mr. Kowieski.
Instead, counsel for FEMA announced that Mr. Kowieski had to leave before the County had completed its questioning, despite an agreement between counsel for the County and counsel for FEMA that Mr. Kowieski's deposi-tion would be permitted to continue into the evening, if neces-sary, in return for the County's agreement that the deposition of FEMA witness Baldwin would be taken first on Friday, June 29.
As a result, the County was prevented from obtaining in-formation pertinent to the RAC review. l i
T
E.
'The County's July 6 Motion to Compel Because the County was unable to ascertain the reasons for and the substance of the various RAC-members' dissenting opin-ions <xt specific RAC findings during the depositions of the FEMA witnesses, the County filed on July 6, 1984, a Motion to Compel Production of Documents by FEMA, and to Postpone the Cross-Examination of FEMA's Witnesses, and for Issuance of Sub-poenas to the Members of the RAC (hereinafter, the " July 6 Mo-tion").
The July 6 Motion requested the ASLB to compel FEMA to produce the 30 documents Which FEMA had refused to produce on the asserted grounds of executive privilege.
The July 6 Motion also sought the issuance of subpoenas to the members of the RAC so that the County could depose them regarding their participa-tion in the RAC review of the LILCO Plan.
Finally, the County requested the ASLB to postpone the cross-examination of FEMA's emergency planning witnesses, then scheduled to commence on July 10, 1984, until the County had had an opportunity to con-duct discovery pursuant to the requested subpoenas.
In the County's view, such a postponement was warranted since the County could not meaningfully probe the bases for the FEMA wit-nesses' opinions and the findings and conclusions of the RAC, upon Which the FEMA witnesses' testimony was based, without an opportunity to obtain and review the documents at issue and to question the RAC members regarding the bases for their evaluatione of the LILCO Plan.
l 1 i
F.
The ASLB's July 10 Order On July 10, 1984r the hearing before the emergency plan-ning ASLB was reconvened.8/
During the July 10 session, the ASLB issued its ruling on the County's July 6 Motion, denying all three requests by the County, i.e.,
for production of the FEMA documents, issuance of subpoenas to the RAC members, and postponement of cross-examination of the FEMA witness panel.
Tr. 12,127-130.9/
Although LILCO, on July 9, had filed papers with the ASLB opposing the County's July 6 Motion,10/ and al-s though counsel for FEMA was granted permission by the ASLB to respond orally to the County's July 6 Motion (see Tr.
12,116-124), the County was denied any opportunity to respond to either the opposition filed by LILCO or the arguments of FEMA's counsel (Tr. 12,127).
The ASLB's refusal to permit any response by the County was prejudicial to the County in that:
(1) as pointed out to the Board at the time the County re-quested to be heard, the arguments made by FEMA's counsel mischaracterized and misstated the record (Tr. 12,124); and (2)
-8/
The trial had recessed on June 15, 1984, and, during the ensuing three-week period, the County had deposed the four FEMA witaesses, as discussed above.
9/
Transcript pages referenced are from the hearings before the ASLB and are appended hereto as Attachment 7.
l 10/
LILCO's Reply to Suffolk County Motion Concerning FEMA Discovery (July 9, 1984).
I !
l the ASLB's July 10 ruling specifically relied upon the facts-asserted by LILCO in its written opposition, without any oppor-tunity by the County to respond (Tr. 12,127-130).
- Moreover, although the County was not given an opportunity promptly sought reconsideration of the ASLB's ruling (Tr. 12,131-133),
the request for reconsideration was also denied by the ASLB.
Tr. 12,133.
In denying the County's July 6 Motion, the ASLB found that the County's desire to identify the dissenting RAC members and the reasons for their dissenting views represented a " complete about-face from the County's position before the Appeal Board" since, according to the Appeal Board's opinion (ALAB-773,. slip op., at 17) "[c]ounsel for the County [had] disavow [ed] any particular interest in the names of individuals putting forth specific views
[but sought] only the basis of the RAC conclusions."
Tr. 12,128.
The ASLB also concluded that the County had not explained why it had become important to have such information.
Id.
Further, the ASLB, following the guidelines set-forth by the Appeal Board in its June 13 Order (ALAB-773, clip op.,
at 25), decided that the County had failed to show a compelling need for the documents withheld by FEMA.
Specifically, the Board held:
- 21
~_
1 Suffolk County has not established 'signif-icant differences of opinion among members of the RAC on important issues affecting the adequacy of LILCO's [P]lan.'
Moreover, the County has not established that these FEMA witnesses are unable to de-fend and explain adequately the FEMA find-ings or that the witnesses view [s] were in-ordinately derivative of other views.
Un-less the County makes such a showing, the executive privilege precludes probing the individual views of individual RAC members.
Tr. 12,128-129.
Finally, the ASLB also denied the County's July 6 Motion because it believed the Motion was " inexcusably late."
Tr.
~
12,129.
II.
Discussion A.
The ASLB's July 10 Order Should Be Reversed The legal principles governing the dispute surrounding the documents withheld by FEMA are uncontested and unchallenged.
These principles -- that the executive privilege asserted by FEMA is a qualified privilege which can be overcome by a showing of compelling need, and that a balancing test must be applied to determine whether the demonstrated need outweighs the asserted interest in confidentiality or " chilling effect"
-- thus constitute the standard to be applied in this appeal with respect to the FEMA documents sought by the County. l
1.
The County Has Been Denied Its Right to Probe the Bases of_the RAC Review and the Opinions of the FEMA Witnesses -
1 Both the ASLB and the Appeal Board have recognized that.
- Suffolk County, as a party to this proceeding, has a right to probe the bases for the opinions and conclusions stated by the FEMA witnesses in their testimony and in the RAC Report atta-ched to their testimony, both for impeachment purposes and to develop a full and complete record.
Memorandum and Order, at 7-8; ALAB-773, slip op.,
at 15-16.
This right is founded in the NRC's own regulations, which provide that a party is enti-tied to conduct "such cross-examination as may be required for full and true disclosure of the fa c ts. "
10 CFR $ 2.743(a).
Likewise, 10 CFR $ 2.740 guarantees the right to prior discov-ery of materials reasonably calculated to lead to admissible evidence.
The need for the County to explore the underpinnings of 1
the RAC review is especially important here because it serves as the very foundation upon which the testimony of FEMA's wit-nesses is based.
This fact initially prompted the ASLB to de-termine that the findings of the RAC are "directly relevant to the issue in controversy in this licensing hearing."
Memoran-dum and Order, at 7.
Indeed, the ASLB found that the in fo rma-tion sought by the County was " centrally important to the 4..
County's case in' asserting that the LILCO Plan does not comply with NUREG 0654."
Id.,
at 9.
Thus, the ASLB concluded that:
Only by probing those findings and determi-nations will the parties and the Board be able to assess the weight to be given to those findings and determinations in our review under 10 CFR $ 50.47(a)(2).
1 Id.,
at 7.
In its June 13 Order, this Appeal Board did not dispute the County's right to information regarding the bases for the conclusions found in the RAC Report.
Rather, its chief differ-ence with the ASLB's May 18 ruling was that the County, in the Appeal Board's opinion, had not yet demonstrated that the in-formation was unavailable through means other than disclosure of the documents at issue.
ALAB-773, slip op., at 15-16.
In-deed, the Appeal Board strongly suggested that if the County was not provided with the information it sought through the scheduled depositions of the four FEMA watnesses, then disclo-sure of the FEMA documents would be warranted.
See id., at 16, 18/ 25.
By way of example, the Appeal Board set forth three 1
circumstances under which the County could establish a suffi-ciently compelling need for the withheld FEMA documents.
In this Board's view, a compelling need for disclosure could be demonstrated where:
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(1)
There are "significant differences'of opin-ion.among members of the RAC on Lnportant issues' affecting ~ the adequacy of LILCO's plan";.or (2)
The "witneses are unable to defend or.
explain adequately the underlying bases for FEMA's determinations"; or (3)
The " witnesses reveal'that they have relied to an inordinate degree on the views of others."
Id.,
at 25.
Notwithstanding the ASLB's contrary opinion (see Tr.
12,128-129), following the depositions of the FEMA witnesses the County found itself in the very circumstances Which the Ap-peal Board contemplated would compel disclosure of the FEMA documents.
For instance, the County was able to determine dur-ing the depositions held on June 27 and 29 that, in many in-stances, there was, at least initially, a difference of opinion among RAC members as to Whether a particular portion of LILCO's Plan should be rated as adequate or inadequate.
This fact was evident from the notes produced by Mr. Baldwin and Mr. Keller.
As can be seen from a review of those notes, on approximately 70 of the 108 NUREG 0654 elements, there was not, at least ini-tially, an unanimous view among the RAC members on the appro-priate rating for the LILCO Plan.
The County,.however, was precluded from discovering the nature of the dissenting RAC members' opinions, the bases for those opinions, or even -
~-
.y
-s_
1
'l. ]
-whether[the gissenters were from : agencies.with expertise. in the i
. area' 'at, '.s sue.
This.was due not only.to the witnesses' lack of t
knowle'dge.or re5ollec\\ tion, but also to FEMA counsel's refusal
^
sba
.to perm'it' the_witnesse's to testify.on'these' matters when they
. admittedly were able'to do so.
See,'e.g.,
Kowieski Tr.,
at
}
117. ;Thus, despit'e, assurances from FEMA's counsel that the in-1formation sought Gould. be forthcoming", the County was prohibit-
^
l-u u.
ed 'from probing ' the. bases for the findings in the RAC review.
r For this reason, Suffolk County submits that the ASLB erred in refusing to compel FEMA to produce the documents sought.by the-County because of the County's failure, in the ASLB's view, to establish "significant differences of opinion p
among members. of the RAC on important issues affecting. the ade-
{
quacy of LILCO's [P]lan."
Tr. 12,128-129.
It is abundantly j
clear from the depositions of the FEMA witnesses that there
}
were significant differences of opinion among RAC members t
i regarding the Plan's compliance with NUREG 0654.
While the t
i FEMA witnesses stated that a "conseu.;us" was reached among all l-of the RAC members on all issues discussed at the January 20 meeting, the County was effectively barred from determining the l
extent of-the RAC members' differences of opinion and the pro-'
I
(
cess by which " consensus" was achieved on-all issues by the i
= witnesses
- 1ack of knowledge, the witnesses' failure of memory, and by FEMA counsel's' instructions to the witnesses not to
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-_. _ 2 _.._._ _ _ _._._ a,-
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answer pertinent. questions.
Similarly, the County was
. prevented from determining Whether the FEMA witnesses " relied
- to an inordinate degree on the views of others," a circumstance
~
which, according to this Board, could well establish a suffi-ciently compelling need for the withheld FEMA documents.
ALAB-773, slip op.,
at 25.
Nevertheless, the testimony that was elicited, together with the produ'ced notes, conclusively de.nonstrate that such " differences of opinion" existed and that whatever differences of opinion existed concerned the RAC's de-terminations about the adequacy of LILCO's Plan.
Accordingly, the County believes that the intent of the first circumstance articulated by this Board, under which disclosure of the underlying FEMA documents would be justified (id.), has been satisfied.
Moreover, the testimony elicited during the FEMA deposi-tions conclusively demonstrates that the FEMA witnesses were unable to defend or explain either the procedures, methods, or activities undertaken by RAC members in performing their review of the LILCO Plan and reaching their conclusions about its ade-quacy.
In fact, the County could not even ascertain What, if any, materials were reviewed by individual RAC members, other than the Plan itself.
Thus, this Board's second circumstance under Which disclosure of the FEMA documents would be warranted, that is, the FEMA witnesses' inability "to defend or explain adequately the underlying bases fo r FEMA 's determinations"-(id.), has been satisfied.
Accordingly, the - Appeal Board should reverse' the ASLB 's July 10 ruling and order FEMA to release the 30 documents which were the subject of the ASLB's previous Memorandum and Order.
Further, the Appeal Board should order FEMA to produce the notes which were prepared.by Mr. Kowieski immediately prior to his deposition on June 29.
The existence of those notes was revealed during Mr. Kowieski's - deposition and they were re-quested by counsel for Suffolk County, since Mr. Kowieski was referring to them in connection with his answers to deposition questions.
Mr. Kowieski also indicated that by reference to the notes he had prepared for his use during his deposition, he could have answered the County's questions concerning the sub-stance ar.d sources of dissenting RAC member comments.
Kowieski Tr.,
at 117.
Clearly, such notes, which were prepared by the witness himself, solely as a means of preparing himself for his deposition, are not subject to the executive privilege.
They were not prepared during or as any part of any " decision-making" process and counsel tor FEMA failed to state on the record of the Kowieski deposition any legitimate basis for his refusal to produce them.
Further, even assuming the notes are somehow privileged, any alleged privilege would have been i
)
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v waived by FEMA's production of the similar notes prepared under identical circumstances by Mr. Baldwin and Mr. Keller.
i 2.
Under the Circumstances, the County Is Entitled to Discover the Identities of. Individual RAC Members'and Their Opinions and Conclusions Regarding'the LILCO Plan In~its July 10 ' ruling,-the ASLB, criticized the County for
~
what it termed a " complete about-face" by the County from the position taken before the Appeal Board. regarding the need to know the identity of individual RAC. members and their specific views aboutLthe LILCO' Plan.
Tr. 12,128.
The County submits that there has been no "about-face" and that, to the contrary, the County's positi an' before this Board and in its July 6 Mo-tion are consistent.
At the time argument was heard before this Board,-the County had not requested the identities of individual RAC mem-bers or their specific views about the LILCO Plan.
In response to a question from the Board, the County's counsel noted that, in the discovery requests that were at issue before the Appeal Board, the County had only requested production by FEMA of doc-uments relevant to the RAC's review of the LILCO Plan.
In those discovery requests, the County had not expressly sought the individual identities or opinions of tne RAC members.
Moreover, the fact that disclosure of the documents requested
by the County would reveal individual RAC identities.was not known until after. FEMA had responded to the County's discovery requests.
During the argument before this Board, however, the County's counsel stated that, if there was not unanimity among the RAC members, individual identities of dissenters could be important.
Obviously, if, in fact, there had been unanimity among the RAC members, it would not now be important to deter-mine individual identities or opinions.
However, as demonstrated during the FEMA depositions, there was a significant lack of unanimity, at least initially, among the RAC members.
Therefore, the individual identities and opinions of the various members are relevant and signifi-cant matters.
For example, without such knowledge, it cannot be determined whether or why a particular individual's opinions were cverridden or ignored by the RAC in reaching a "consen-sus," even though that individual may have had pertinent expertise or experience in a relevant subject matter.
- Clearly, the identity of, and bases fo r, an individual dissent could be significant in determining the weight to be assigned to a par-ticular RAC conclusion.
Accordingly, the County submits that, under the circumstances, it is important for the County to dis-cover the identities of individual RAC members and their opin-ions or conclusions regarding the LILCO Plan, and that the ASLB therefore erred in denying the County an opportunity to learn such information.
t I.
3.
The County's July _6 Motion, Contrary to the ASLB 's July 10 Ruling, Was Not Untimely The ASLB also criticized the County for " waiting c full
' week after completion of the last [ FEMA] deposition before fil-ing [the July 6] [M]otion."
Tr. 12,129.
Indeed, the ASLB rested its denial of the County's July 6 Motion, in part, on the grounds that the Motion was " inex'cusably late. "
Id.
Suffolk County submits that the ASLB erred in this regard.
Contrary to the ASLB's opinion, the County did not wait a full week before filing the July 6 Motion.
Rather, the County had available to it but three business days from the time the deposition transcripts were received until the time the July 6 Motion was filed.
The last FEMA deposition was completed Friday, June 29, at about 7:30 p.m.
The deposition transcripts did not become available until approximately midday on Monday, i
July 2.
The four transcripts totalled some 600-700 pages in length.
Of course, the County recognized the importance of preparing and filing its Motion as quickly as possible, and began preparing the Motion on Tuesday, July 3.
However, in light of the sheer size of the transcripts, the need to review the transcripts to determine whether a motion to compel should be prepared, and the intervening July 4 holiday, the County was unable to prepare and file its Motion earlier than July 6.
Under the circumstances, the County submits tha t the July 6 31 -
. Motion was filed in a timely manner and believes it was~ error for the ASLB to have rested its denial of the Motion in any way on the-belief that the Motion was untimely.
4.
The'ASLB Should Have Issued Subpoenas to Depose All of the RAC Members On April 20, 1984, the County-submitted to_the ASLB a num-
'ber of subpoenas directed to individual IUUC members.
The Coun-~
ty did not then request that those subpoenas be issued, in the hope that during their depositions the four FEMA witnesses would be able to respond satisfactorily to the County's ques-tions regarding the RAC review.
Memorandum Explaining Suffolk County Discovery Requests Relating to FEMA, at 4-5 (April 20, 1984).
The County s,9ecifically stated:
If, however, the FEMA witnesses are not able to provide the information requested by the County, or if FEMA either does not have in its custody, or refuses to produce pertinent documents related to the RAC re-view, it may be necessary for the County to pursue the additional discovery described above directed to individual RAC mem-bers.
Id-It is now apparent that FEMA's witnesces are unable to explain what individual members of the RAC did in reviewing LILCO's-Plan and what their opinions were as a result of that
(
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i 1
review.
Indeed, as noted above, FEMA's counsel prohibited the County's inquiry into these issues by instructing FEMA's wit-nesses not to answer. relevant questions on this issue.
There-fore, the only way. for the County to discover this relevant in-formation is to depose each'RAC member.
Thus, the ASLB'should have issued the April 20 subpoenas so that the depositions could be arranged and taken expeditiously.
In light of the ASLB's refusal to do so, Suffolk County hereby requests this Board to remand this. issue to the ASLB, with instructions *o.
issue the pending subpoenas forthwith.
5.
Cross-Examination of FEMA's Witnesses should Have Been Postponed Until the County Had Received and Reviewed the FEMA Documents and Deposed the RAC Members As noted above, the County is entitled to conduct a full cross-examination of FEMA's witnesses after having had the op-portunity to discover all evidence relevant to the issues at hand.
The County, however, has not had the opportunity to ex-plore the relevant facts behind and the underpinnings of the RAC review and the RAC findings and conclusions, and thus was prejudiced when compelled by the ASLB's July 10 ruling to go forward with its cross-examination of the FEMA panel.
Such cross-examination was necessarily based on only partial knowl-
)
edge of the facts.
c..
The FEMA witnesses are scheduled to return to the hearings to testify during the week of August 14.
Thus, if this Appeal is granted and the requested discovery can be conducted prompt-ly,.the cross examination which could not be conducted in July could.be conducted in August, without substantial delay in the proceedings.
There fo re, the County requests this Board to con-sider and rule on the issues presented herein as expeditiously as possible.ll/
B.
Conclusion For the reasons stated above, the Ccenty submits that this Board should reverse the ASLB's July 10 ruling and grant the relief requested herein.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H.
Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Lawrence Coe Lanpher Karla J.
Letsche Michael S.
Miller Christopher M.
McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Suffolk County Dated:
July 26 1984 11/
The County could not have filed this Appeal any eariier because the emergency planning hearings in which cognizant counsel were involved did not adjourn until July 20.
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ATTACHMENT 3 3
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s I
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION j-E 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
4
x i
1 5
In the Matter of:
l 6
LONG ISLAND LIGHTING COMPANY Docket No. 5-322-OL-3 (Emergency Planning
{
7 (Shoreham Huclear Power Station, :
Proceeding)
Unit 1) l 8
x 9
l
's 10 l
I d.
II I'
{-
12 Federal Emergency Manag? ment Agency
[
l l
26 Federal Plaza, Room 1349 I3 New York, New Y o r' k 10278 I
I I
Id l!
Friday, June 29, 1984 l
I i
15 16 Decosition of ROGER B.
K0WIESKI, call.d for I7 examination by counsel for the Intervenor, Suffolk County, II taken before Garrett J.
Wal;h, Jr.,
Court Reporter, begin-19 n i,g at 3:55 p.m.,
cursuant to notice.
i l
20 t
I t
I
=
22 M
f
f5 6
1 A
Are you asking me off the top of my head.
2 All elements, or --
3 Q
Well, if you can do it.
But let's look at 4
Exhibit 1.
Mr. Fish from DOE is the first person listed, 5
correct?
6 A
That is correct.
But there are Specific 7
assignments that RAC members have, and they are responsible f
i 8
to review certain elements.
9 Q
Okay.
Let's discuss that first.
Do you make i
10 the assignments to members of the RAC Committee?
1 11 A
The assignments list came from National Of fice,
12 you know, at least two or three years ago.
(
13 0
Okay.
We have had discussions about this with 14 Mr. Keller, I think.
Maybe Mr. Baldwin also.
This is
(
15 where there is a memorandum in the agency setting out what f
i 16 those agencies should review and a matrix, or something I7 of that sort?
It A
Your understanding is correct.
I' Q
So you do not specifically make any assignments 20 to the agencies that are represented on the RAC?
21 A
I don't.
However, I do encourage to go beyond 22 whatever is specified on -- by the guidelines supplied by I
o
. t
1 46 I
National Office.
2 What I am saying by going beyond, to provide more comments on more elements than just those they are 3
4 responsible for.
5 Q
How do you encourage these members of the RAC 6
to do that?
You have to develop a certain relationship with 7
A 8
RAC members, saying:
Listen, okay, if you -- don ' t stop I
9
}
when you comment on -- when you read the plan, if you have 10 a comment please comment, please provide comments on other l
11 elements if you can, because this would be very helpful when 12 we meet later on and discuss the final document.
13 Q
Did you encourage the members of the RAC for I4 Revision 3 of the LILCO Plan to go beyond their areas of I
I 15 responsibility?
i i
16 A
I did not specifically encourage them to go --
I 37 for Shoreham to go beyond.
It is an understanding, it is i
I8 a common practice in our Region that automatically provide i
comments not only on the elements that they are responsible I
0 for, that each time they see anything in the Plan that they i
f i
I 21 teel it s impe-tant +- know, to provide comments to me.
22 Q
Do ycu know, Mr. Kowiesti if tn fact the members 1
1
47 s
I i
1 of the RAC did, indeed, go beyond their areas of responsi-2 bility in conducting the review process for Revision 3 of 3
the LILCO Plan?
l l
4 A
Some of them did.
5 Q
Some of them not?
I 6
A That is correct.
i 7
Q Can you tell me which ones did, and which ones 8
did not?
9 A
It would take me probably a great amount of time !
10 to go and identify which RAC members did not go beyond what 11 was required.
I would have to go into my detailed comments. -
12 Q
Would you have to go back and look at the 13 written comments received'from the members?
I' A
Yes, sir.
l 15 Q
You can't do it sitting here today?
16 A
No, sir.
II MR. MILLER:
Mr. Glass, has the County been 18 provided with the matrix -- the memorandum to the agencies I
I' which we have been discussing that sets forth areas of 20 responsibility?
21 MR. GLASS:
I re ally don ' t know.
I don't know 22 t it was part of the FOIA material that came in under that, i l
l
51 A
I I
1 testimony -- for example, look at page 9 of the FEMA testimom-2 if you would, sir, which is Contention 20.
If we were i
3 to go through this FEMA testimony contention by contention, 4
could you identify for me the basis for the testimony 5
regarding each contention.
6 For example, whether the basis would be the 7
RAC Report or the LILCO Plan or personal judgment, or 0654, 8
or any combination of those things?
9 A
Well, I think I will be able to.
For instance, i
10 Contention 20, the information that appeared here were II provided by one of the RAC members, which again we did not 12 identify.
Marian Jackson, which is public information 13 officer, and she is part of FEMA, Region II. And some of the input provided on public information and education were provided by Marian Jackson.
15 I'
Q Mr. Kowieski, have you prepared notes regarding I#
tabulation, compilation of comments received from members 18 of the RAC and how those comments relate to each planning 19 element of 0654?
M A
I have my personal notes.
I i 21 Q
And are you aware of the fact, Mr. Kowieski, that l
2 Mr. Baldwin and also Mr. Keller also prepared notes regardingl
52 o
a 1
the review process and comments received from members of 2
the RAC?
3 A
Yes, I am.
4 0
Have you seen their notes in this regard?
5 A
Mr. Glass provided me with a copy on Wednesday 6
and today.
On Wednesday Mr. Keller's comments, and today 7
Mr. Baldwin's.
8 However, it should be -- the record should be 9
clear we did work together on other occasions, and I'would to be surprised -- we agreed because that is what represented 11 the factual data so there shouldn't be any disgreements.
12 MR. GLASS:
It should be noted for the record 13 I provided to Mr. Kowieski either after it had been provided 14 to these members or concurrently to the parties sitting at 15 this table.
16 BY MR. MILLER:
(Continuing) 17 0
When you prepared these notes, Mr. Kowieski, 18 were they prepared independently of Mr. Keller and Mr.
19 Baldwin?
20 A
I prepared my own notes, that is correct.
21 Q
You didn't discus. your notes with Mr. Keller 22 or Mr. Baldwin?
53 o
1 A
Yes, I did.
2 Q
You did.
When did you have this discussion?
3 A
It was Monday and Tuesday of this week.
4 Q
You and Mr. Keller and Mr. Baldwin discussed 5
the notes.you were preparing while you were preparing the 6
notes?
7 A
Sure.
8 Q
Did you discuss just your notes, or did you 9
discuss Mr. Keller's notes and Mr. Baldwin's notes as well?
10 A
I discussed -- we discussed the issues, and 11 we were taking notes in our own way.
12 0
Tell me how this process worked in preparing 13 these notes.
Were you all together in one room?
14 A
fnat is correct.
15 0
And you had the comments that had been received 16 from the RAC members?
17 A
That is correct.
18 Q
And did you go through them element by element 19 and then write down independent of one another your recollectior 20 as to what had been determined?
21 A
No, we discussed -- and when we discussed, we 22 had the same understanding.
One after one.
The same
54 0
I understanding of what transpired prior to and during the 2
January 20th RAC meeting, and we were taking notes in our 3
own way.
4 Q
How is it, Mr. Kowieski, that the notes were 5
independently prepared if you were in one room, sitting i
6 together, looking at the same material and p'articipating 7
in discussions with one another?
l 8
A What I am saying to you, that when we discuss j
9 each planning criteria, and when we agree that what l
actually happened during the RAC meeting on January 20th, 10 i
11 Mr. Keller was taking notes in his own way and fashion, j
12 I was taking in my own way, and Mr. Baldwin was taking 13 notes the way he wanted.
i 14 l
Q Well, do you have a copy of your notes with 15 I
vou?
l 16 A
Yes, sir.
17 MR. MILLER:
Mr. Glass would you like to l
distribute those notes.
18 I9 MR. GLASS:
At the moment, there has been i
20 no foundation laid for a need for those notes.
It may 21 be that Mr. Kowieski, utilizing the no te s already provided
}
22 by Mr. Keller and Mr. Baldwin may be able to answer your j
questions.
I l
55 1
WITNESS KOWIESKI:
I would like to just only 2
-- for the record, I am very reluctant to.rele ase my notes,
I 3
for Number 1, the very simple reason that while I was takingl 4
my notes I did not keep in mind the third -- the second l
5 party will have to read my notes.
If someone, you sir, 6
anybody else in this room would take a set of ' notes, my i
7 notes, cryptic notes, may misinterpret what I am'saying.
I 8
I feel that only I can understand and interpret these 9
notes.
That is the only reservation I have.
I I
10 MR. MILLER:
I understand that, sir.
That is 11 always the-problem with notes, I suppose.
We had the 12 same discussion with Mr. Baldwin and Mr. Keller, and I l.
i 13 will be glad to give you the opportunity, to discuss these i
I4 notes today, and we might even have the opportunity down i
i 15 the road.
i
{
16 MR. GLASS:
At this point there has been no 17 fo undation.
We are at a,different stage with Mr. Kowieski l
I8 than we were with certainly Mr. Keller in the fact that we i
I' '
I now have available Mr. Keller and Mr. Baldwin's material, 20 l
and Mr. Kowieski may be able to inquire.
He is not using l
l l
21 those. notes right now to testify.
They are his personal l
l 22 notes, and if he is able to answer your questions using l
I
56 j
1 1
the o ther notes, I just don't see where you have any right 2
to them.
3 MR. MILLER:
Well, we will get to my right 4
to them.
Let me continue with some other things.
I 5
BY MR. MILLER:
(Continuing) l 6
Q Mr. Kowieski, before we actually g'et into the i
7 RAC report and the need for your notes, can you just describel 8
for me the -- if you would, describe for me your involvement l 9
in the RAC review process for the LILCO Plan.
If you will 10 just give me a chronology beginning back in September, and i
II I would appreciate the detail of what you went through.
l 12 I understand it has been a lot of work.
i 13 Is that a chronology you are looking at?
I4 A
I do have my own chronology.
15 MR. MILLER:
Do you know, Mr. Glass, if that 16 document has been produced.to the County' l
I7 MR. GLISS:
Again, Mr. Kowieski has informed i
18 me these are his notes, they are typed.
There are a number i
19 l
of other handwritten notes throughout.
He has answered most i i
i M
of your questions up to this particular point.
There is l
21 no foundation.
I MR. MILLER:
Well, my questions L A
g-b I
i-I i
i.
The same thing -- we had Mr.
MR. GLASS:
Keller reading I
Baldwin reading his calendar, and you had Mr.
1 is just the same type of thing.
his calendar.
It 3
I didn't request the other documents.
MR. MILLER:
I am requesting this chronology.
3 Let me look at the chronology.
MR. GLASS:
g Do you want to proceed with another area.
7 Let me just proceed.
MR. MILLER:
g BY MR. MILLER:
(Continuing) 9 Q
Mr. Kowieski, if you could, because I am not g
I am looking for a general looking for a particular date.
11 If you could describe for understanding of the process.
12 and how that in the RAC review process, me your involvement 13 process worked for the Shoreham plant, and I guess begin W
sir, back in September or October when 15 if you would, please, a RAC review for the Shoreham the request came in to conduct le 17 plant.
1,
the Regional Shortly after Frank Petrone, O
A a letter to RAC members requesting a review t -
N Director, sent Revision 1, shortly after I was i
3 of LILCO Transition Plan, And in touch with each RAC member and two consultants.
II for submission D
I explained the target dates or deadline l
_o
83 Q
The comments were given to Mr. Acerno and Mr.
1 i
Baldwin te work with, is that correct?
i 2
I 3
A That is correct.
4 Q
And they put together, or they modified the report i
which had been prepared for Revision 1 to take into account 5
6 the comments in Revision 3, correct?
7 A
That is correct.
a Q
And then I think you said, Mr. Kowieski, you j
spent several days working with Mr. Baldwin and Mr. Acerno 9
i i
I 10 in going through the flip chart and the working document I
11 for the January 20th meeting, and in preparing for the 12 J'nuary 20th meeting, correct?
I 13 l
A That is correct.
I
'14 l'
Q Now, during the January 20th meeting, could
\\\\
l you describe to me how that meeting was conducted.
- You, 15 16 as Chairman, conducted the meeting, correct?
I 17 A
That is correct.
I 18 Q
So how did you conduct the meeting?
19 A
I opened the meeting.
I stated the purpose of 20 the meeting, and I proposed the agenda, and the agenda was l
to review, element by element, consolidated working document.,
21 i
22 I
I also stated that anybody who has objections, add i tional
84 l
1 comments, it is a good time, it is the time to modify, to 2
change, and -- because we have to finalize the document.
3 So we went element by element through the i
4 l
working document, and questions or issues were re'. sed, we i
5 discussed those issues, and if necessary, to make some 1,
I
~
ad j us tmen ts.
6 I
7 I
Q Do you recall, Mr. Kowiaski, whether there was, S
indeed, discussion on each and every element that was addressed 9
in the RAC report?
10 A
What you are asking here, I unders tand, if we h
l 11 discussed every element that we commented on?
- \\
12 Q
I am asking if there was discussion of each s; l.
13 and every NUREG 0654 element.
t-i il 14 1
A That is what I stated on the record, that we 15 discussed A through P, and we discussed every single element 16 l
and comment, as it applies to NUREG 0654 planning criteria.
I 17 l
0 If, for example, Mr. Kowieski, the comments i
18 received from members of RAC were unanimous in terms of s
19 how they thought an item should be rated, did you nonetheless 1
1 20 spend time discussing that element?
l 21 A
To a lesser extent where there was a dif ference i
22 in the rating among RAC members.
i l
i I
x
_A
85 e
1 Q
And as you discussed each element of the RAC 2
Report, Mr. Kowieski, there were various di scussions by i
i 3
the various members of the RAC Committee, correct?
4 A
And both consultants, Mr. Keller and Mr.
5 Baldwin.
}
6 Q
And as you thought those discussions came to an 7
end for a particular element, did you say -- how did you 8
decide it was time that we went to the next element.
9 A
Very simple.
I made ten or fifteen copies of the; i
10 working document.
I distributed it.
Everybody -- everyone 11 i
who was present at the meeting.
In addition, a set of 12 comments, our own comments submitted to me, plus there were i
13 two flip charts.
The one flip chart, another document which 14 i
is modification of comments in Revision 1.
t i
I 15 So, if there was an issue raised by one of the 16 RAC members, and this was the case, we would go back to the I7 i
initial set of comments, restate each comment, go back to the'.
18 Plan if necessary, verify that this particular element or I'
statement is correct, the Plan reflects this.
Then finally, 20 i
we would agree on the final language, and there was 21 in te raction.
22 Nobody can recall every single word that was I
i 99 e
c 1
Director released the document to National Office, was the 2
same day I.sent by express mail the document to all RAC 3
members, including consultants.
4 Q
So the RAC members received the RAC report, the 5
final RAC report at the same time the document was sent 6
to the NRC?
7 A
To FEMA Headquarters.
8 Q
February 21st?
9 A
That is correct.
And there was no draft of any kind sent subsequenk 10 Q
11 to the January 20th meeting, and prior to that February 21st 12 date?
13 A
That is correct.
14 Q
Mr. Kowieski, are you capable of telling me 15 for each element, NUREG element in the RAC report, those 16 members of the Committee, including Messrs. Keller and 17 Baldwin, who initially thought an item was adequate or 18 inadequate?
19 MR. GLASS:
He is just asking if you can do that.
20 WITNESS KOWIESKI:
Sure.
21 EY MR. MILLER:
(Continuing) 22 Q
Could you tell me, then, for example, for
100 o
1 Element A.l.A, which members initially thought that item 2
should be rated, ' adequate?'
3 MR. GLASS:
He is only asking'if you can 4
identify them.
S WITNESS KOWIESKI:
For Element A.l.A.,
yes, sir.
6*
BY MR. MILLER:
(Continuing) 7 Q
You can tell me that?
8 A
Yes, sir.
9 Q
Which members felt that item should be rated to adequate?
11 MR. GLASS:
At this point, this is the same 12 situation that we are getting into.
It is the same thing 13 that has been decided by the Appeal Board, and I will instrue:
14 the witness not to answer that.
15 BY MR. MILLER:
(Continuing) 16 Q
Can you tell me, Mr. Kowieski, for Element A.l.A.
17 which members felt the item should be rated, ' inadequate?'
18 A
One RAC.
Which members?
I' Q
Which members.
20 MR. GLASS:
Don't give a name.
Just answer 21 his question.
22 WITNESS KOWIESKI:
Four members rated this element ' inadequate, ' one member rated this element to
101 3 -
4
- D 1
be ' adequate,' provided LILCO will have legal authority 2
to implement the Plan.
3 BY MR. MILLER:
(Continuing) 4 Q
Mr. Kowieski, do you have the information 5
available to you to tell me which specific members of the 6
RAC Committee, including Messrs. Keller and Baldwin, 7
initially decided to rate an element ' adequate ' or 'inadequateP 8
MS. McCLESKEY:
Objection.
Asked and answered 9
about two minutes ago.
10 MR. GLASS:
It has been just asked and answered.
11 MR. MILLER:
Can you answer my question, Mr.
12 Kowieski?
13 WITNESS KOWIESKI:
Will you please restate it?
14 BY MR. MILLER:
(Continuing) 15 0
Do you have the information available to you to 16 tell me which members of the RAC Committee initially believed 17 particular NUREG elements should be rated, ' adequate' or, 18
' inadequate?'
19 A
By name for every single element?
20 0
Do you have the information available?
21-A Yes, sir.
22 0
You have that information to give me their names?
102
's o
1 A
If I have, I have it in my office.
2 Q
Do you have the information available to you 3
to tell me those members -- total members who wanted, or l
4 believed an item should be ' adequate,' and those total i
I 5
members who believed an item should have been rated, I
l 6
' inadequate?'
7 MR. GLASS:
With the same objection as to 8
form.
Number one, I don't know at what point in time you 9
are talking about, and number two, I am not clear whether 10 you are talking about a particular element, whether you 11 are talking about all hundred and some odd elements.
12 MR. MILLER:
Mr. Kowieski, I am talking about 13 all elements addressed in the RAC report, and I am talking 14 about at the time the written comments in Revision 3 were i
15 received.
I 16 That is, prior to January 20th meeting.
17 Do you have information available to you that 18 indicates the number of members of the Committee for each 19 element of the RAC Report who believed an item should be 20 rated, ' adequate,' and the number of members of the Committee 21 who believed an item should be rated, 'incdequate.'
l 22 MR. GLASS:
The record can reflect that I am l
103 1
I providing Mr. Kowieski with Mr. Baldwin 's notes, which w2s 1
identified as Baldwin Exhibit No.
2, and Mr. Keller's notes, 2
which were identified as Keller -- I think that was Keller 3
4 No.
1, if I am correct.
5 MR. MILLER:
I think so.
1 i
6 MS. McCLESKEY:
I believe that is right.
l 3Y MR. MILLER:
(Continuing) l 7
l 8
l Q
Do you have the information --
1 I
I 9
f A
Yes, sir.
10 Q
Mr. Kowieski, was this the kind of information k
11 that you put together in preparing your personal notes?
12 A
Yes, sir.
t 13
- 22. MILLER:
Mr. Glass, again I request 14 y
production of Mr. Kowieski's notes.
15 MR. GLASS:
There has been no foundation laid.
16 Mr. Kcwieski -- he has created personal notes.
He is not 17 il utilizing those personal notes at this time to refresh his l
d 18 memory.
You are asking him questions.
He is utilizing two i
19 documents that have already been provided to you, and you li 20 have not reached the point where he is unable to answer
)
21 I
your questions utilizing those documents.
1 22 I don't think you have e:tablished any need for i
i i
l
.a u
i n
I those personal notes.
I 1
BY MR. MILLER:
(Continuing) 2 notes of Q
Mr. Kowieski, have you reviewed the 3
Baldwin and Mr. Keller prior to today?
4 Mr.
I stated for the record.
g I
A No, sir.
5 l
So you had no chance or opportunity to see if i
l Q
6 the same information tscertained l
the notes you prepared reflect 7
Baldwin, is that correct?
-- dete rmined by Mr. Keller and Mr.
8 l'i A
That is correct.
9 j
MR. MILLER:
Well, fir. Glass, in light of the
.f f
10 am running out of time -- I have three minutes f.
e l
fact that I n
11 l
I again request you produce Mr. Kc.'ieski's notes,
I f
to go, 12 Mr. Kowieski 13 0
because otherwise going through these notes, a
il here and read these notes for the 9
14
?
is going to have to sit
[
i 15 first time.
N MR. CLASS:
I think I will stand by my present 16 17 l
position at this time.
18 BY MR. MILLER:
(Continuing) the 19 Q
Mr. Kowieski, are you able to tell me what RAC Committee did in preparing their comments 20 members of the I
submitted prior to the January 20th mee ting?
21 that were
\\
22 A
I don't understand your question.
l t
1 i
i I.
I ad#
Qy M
Q Well, you have told me that what you did in your pg j
- b review with respect to the RAC review process was that you Sh 2
.Pdf reviewed the LILCO Plan, portions and parts of the LILCO
.3
{1
,4 Plan, correct?
.a.If 5
A At what point?
At a certain point, yes.
VJ
.9
.,fp 6
Q Okay.
Now, those members of the RAC Committee iS ph 7
who provided comments that were used at the January 20th
?Y -
3 s
meeting, do you know what they did; for example, what they
'M N
9 looked at and reviewed in order to make determinations 1
10 as set forth in their comment that was sent to your f
11 attention?
12 A
I can tell you the four volumes of the LILCO 13 Transition Plan, and NUREG 0654.
They used their professional 14 judgment, expertise, based on their educational background i
15 and experience gained in the past.
Do you specifically know that the only thing the 16 O
17 members of the Committee used in their review were the four 18 volumes of the LILCO, Plan?
l' A
If I know?
20 0
Yes, sir.
21 A
They were requested to provide comments on the 22 LILCO Transition Plan, Revision 3.
g-g;-
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3 Q
Do you know, though, what they actually did do
(;s;. ~.11
?s, in providing their comments to you for use in the RAC 1
J;b review process?
.b 1 3 A
They did not advise me otherwise when they li submitted comments to me.
Q I want to repeat my question.
Do you know,
- j specifically know, what members of the Committee did in 7
preparing their comments on the LILCO Plan that was sent to you?
g A
They --
y MR. GLASS:
This is getting back to the same
.g g
Z
'k a
situation which was gotten into in the three prior instances.
wk If you are asking Mr. Kowieski was he present, and did he
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. f.
u watch what each individual did, so that he can then say e
es p-u for a fact that he saw the person open and read all four TJ-S 4
volumes and NUREG 0654, you can understand his hesitancy b7 17 to be able to respond to such a question.
E W
BY MR. MILLER:
(Continuing) y
' r; H
Q I am sure, Mr. Kowieski, that you did not watch l[
&y 20 the members of the Committee in what their review consi st ed 21 of, is that correct?
, w; lAlZ 22 A
No, I did not sit in their office and watching
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.A
![
E lE
~-
o D
i them revir. the LILCO Transition Plan, Revision 3, that j
1 2
is correct.
3 I
Q Did you ever specifically ask any member of the i
}
Committee.
ncluding Messrs. Keller and Baldwin, what they l
4 f
did in reaching their conclusions and judgments regarding l
5 l
6 l
the LILCO ?lan?
7 A
At the meeting I asked -- at the January 20th j
0 l
meeting, ekay, if, for instance, an issue came up, if they l
9 review, fo r instance, Appendix A.
Basically I would 10 insult their intelligence by asking, say:
Have you reviewed t
i 11 j
the Plan.
Did you base your comments on the Plan?
\\
12 I
Because, you know, those people are professional !
I 13 l
individuals, and are ceing designated by their respective I
i 14 I
agency to assist FEMA, and I have. to maintain a certain i
15 relationship.
I cannot insult them by asking them a very l
j obviou question.
16 17 Q
Yes, sir, I understand.
Did you ever specifically 18 ask any member of the Committee, however, if they reviewed l
19 anything other than the LILCO Plan?
20 A
tio, sir.
l i
21 i
Q The answer is,
'no?'
A Yes, sir.
I 1
l h
1 MR. GLASS:
He is asking you at this point did 3
2 you ever ask any of the RAC members if they ever reviewed 3
anything other than the LILCO Plan.
What is your response?
4 WITNESS KOWIESKI:
Other than -- no.
i 4
5 BY MR. MILLER:
(Continuing) 6 Q
Do you know, Mr. Kowieski, whether command and 7
control issues are addressed in NUREG 0654?
8 j
A Sure.
9 l
Q Do you know whether those issues are addressed 10 l
in the RAC report?
11 l
A Yes, sir.
1 12 h
Q Can you tell me why FCMA is submitting no l
j 13 testimony on contentions 11 and 15?
I 14 A
I was advised by my counsel not to submit 15 testimony on those particular contentions.
g 16 Q
Do you know why?
17 A
It is not my decision.
It is counsel who is l
making the decision.
le I'
O Mr. Kowieski, have you at this time been asked to provide any testimony on behalf of FEMA regarding trainind 20 21 issues?
22 A
I understand that we eventually will provide
.i 1
l r
i i
117 l
and as a result I
compensating plan, provided our comment,
2 l
of it, obviously later on the exercise came about.
3 i
The letter was different.
l 4
l Q
Mr. Kowieski, you have told me that you have 5
the information available to you to identify the members i
l of the RAC Committee who initially in their comments to the 6
7 Committee believed items should be rated ' adequate' and/or 8
' inadequate' correct?
9 A
That is correct.
10 Q
Now, I would like you, Mr. Kowieski, to contention 11 by contention -- I am sorry.
I would like for you, if you 12 would please, using the RAC Report, element by element, to I
i 13 tell me the members of the Committee who believed that
'l the rating finally determined in the RAC Repo rt who initia ly c
14 believed that was a correct rating?
15 16 i
MR. GLASS:
I cbject.
You are trying to get 17 through the back door the same information that you were 18 tried to get through, and went up to the Appeal Board.
You 19 are trying to have him identify preliminary statements that i
were contained on the original documents which were held to 20 l
i 21 be subject to privilege.
You are trying to cbtain the 22 same, exact information.
You are trying to have him identify
118 t
I "t
J l
{
which individual said, ' adequate, ' and which individual 5
l 6
f said, ' inadequate ' on those preliminary documants, and the 2
3 i
Appeal f.ard has upheld FEMA's position.
And I do not see 4,
l 4
anything at this point which indicates you are entitled to 5
that in f o rmation, or that there is any need for that i
information.
3 I
MS. McCLESKEY:
In addition, it is almost a i
l quarter to seven.
I MR. MILLER:
I understand what time it is, Mr. Kowieski, I am going to ask the question again, and then i
l your counsel can instruct you one way or the other.
l l
BY MR. MILLER:
(Continuing)
Q What I am asking is for you to tell me, element by element, based upon the final RAC report, those members of the RAC who in their initial comments believed that the rating that was finally derived, following the January 20th
.f meeting, was in fact the rating they suggested in their i
written comments prior to January the 20th?
l MS.
.v CLESKEY:
Mr. Miller, do you intend to c
i abide by the agreement tha t we made that the State and L:LCO were to have an opportunity to question Mr. Kowieski before j
seven o ' clock?
g
l l
l l
MR. MILLER:
I don't think I have made any l
i agreement, because I disagree with this whole procest of
~
cutting off at seven o' clock.
MS. McCLESKEY:
Do you intend to allow the State j
and LILCO to ask Mr. Kowieski any questions before seven i
o' Clock.
t MR. MILLER:
It is not that I am allowing or disallowing.
I am not disallowing questions by the State or LILCO.
MS. McCLESKEY:
Well, are you going to conclude m
l your questioning right now, at a quarter to seven.
MR. MILLER:
I am in the middle of a question u
right now, t
MR. GLASS:
As to this particular question, it 3
l is my understanding -- correct me if I am wrong -- that you are asking him to identify for you the positions of the individual RAC members as provided on their comment sheets to the RAC Chairman prior to the January 20th meeting.
If l
that is what you are instructing him to do, I am instructing the witness not to answer your question.
I MR. MILLER:
Is your instruction the same if I asked Mr. Kowieski te identify representatives -- if I asked i
Mr. Kowieski to identify the agencies represented?
j i
1 t
i
t i
L 1
MR. GLASS:
That is the same question.
We 2
have -- it is a very simple mathematical formula.
3 MR. MILLER:
Was your instructi0n nct tc an:wcr 4
I the question?
l 5
i MR. GLASS:
Let me finish my statement.
It is 6
a very simple mathematical formuis you have.
We have 7
already provided you the names of the agencies and who 8
l the individuals are, so if he was to provide the answer i
I to your sencond question, he would in effect be providing 9
i c
i 10 the same answer.
L 0
i 11 i
And, therefore, I am instructing the witness i
12 not to answer.
I am concerned now that we have two other I
13 l
parties who have expressed an interest Id MR. MILLER:
I unde rstand.
Let me try to wrap 15 it up.
Let me try one more time so that we have a complete 16 understanding of what my question is.
I7 BY MR. MILLER:
(Continuing) 18 Q
Mr. Kowleski, what I am asking you is would you 19 identify for me these members cf the RAC who agreed and i
l 20 disagreed with the -- lot me start again.
21 I am asking you to identify those members of the,
22 PAC, including Messrs. Keller and Baldwin, who at the tire 1
i l
i l
l l
I
88&
b l
o I
I i
i their comments were submitted for the January 20th meeting, 4
k 2
agreed and disagreed with the rcting that was finally assigned h
3 in the RAC Report as issued by FEMA to the NRC?
4 MR. GLASS:
I am having trouble understanding 5
i your question.
If your question is:
Did the members agree f
to finally agree with all the conclusions, Mr. Kowieski 6
7 has stated a number of times that the re was concurrence.
3 MR. MILLER:
That is not my question.
I am 1
talking about the position of the RAC members, including 9
I d
10 J
Messrs. Kelle r and B sidwin, in their written comments or II otherwise, that were submitted prior to the January 20th 12 meeting, I want to know the positions of the members of the J
13 Committee with respect to whether they were in agreement I
14 or disagreement with the rating finally derived and set j
15 forth in the RAC Plan issued to the :1RC.
16 MR. GLASS:
I am instructing the witness not 17 to answer the question.
,You have had SW. Keller heret you 18 have had Mr. Baldwin here.
You took the opportunity with i
l' l
Mr. Keller to inquire.
He gave you a listing of what his original ratings were, so you have that in format ion.
And 20 21 I am instructing the witness not to answer at this point.
MS. McCLESKEY:
Mr.
tille r, I ob]ect to the 22 l
122 t
1 question.
It is the same question you have been asking for 2
half an hour, and it is clear at this point that you insist 3
i on repeating it to take up the remaining ten minutes of time l
4 l
that this witness will be here, and to disallow LILCO and the I
i 5
State an opportunity to question Mr. Kowieski.
6 MR. MILLER:
Ms. McCleskey I would appreciate l
your not trying to interpret my motives.
It upsets me.
It 7
i 8
is unprofessional, and I think it is uncalled for.
9 BY MR. MILLER:
(Continuing) 0 Q
Mr. Kowieski, you have been instructed not to l
answer my question, and of course I have to abide by that.
1 l
But I want to make it clear for the record that my opportunities 2
3 to question Mr. Keller and Mr. Baldwin went to their involvement 4
in the RAC.
i 1
5 Mr. Kowieski is here as Chairman of the RAC.
He t
6 l
had the information available to him to tell me the members 7
and their positions on the RAC; Mr. Kelle r and Mr. Baldwin 8
both made clear they were not in a position to give me that 9
information.
i 9'
4 i
So, there is a difference.
l 1
MR. CLASS:
You made your statement, and I
)
d2 j
stand by my statement.
- 2 l
l
~
L eJ
123 I
MR. MILLER:
I will conclude my questions 2
with another statement.
The stateme nt is that I am not 3
finished my questioning with Mr. Kowieski.
I very much t
i 4
l would like to continue my questioning of Mr. Kowieski.
I l
do not feel I have been given adequate opportunity in light 5
6 of the fact that Mr. Baldwin did take much longer than Y
I 7
anticipated, and in light of the fact of the importanco t
8 i
of Mr. Kowieski to this proceeding, and I, therefore, would 9
request again that you provide me some additional timo, Mr.
10 Glass.
11 I think perhaps another half hour or so I l
12 would finish my questions, and if you don' t provido me the f
additional time, all I can do is tell you I reserve the right'
[
13 g
E Id to call back Mr. Kowieski.
I will not say that this deposition f
i 15
/
concludes today.
And if we decido to call back Mr. Kowtoski, 16 and if you don't produce him vcluntarily, that is an issuo 17 l
we would take to the Board.
18 l
MR. GLASS:
I will stato for the racord that wo I'
l had an agreemant.
That the agroomon t was -- and this was 20 i
the agrooment -- that we woro not going to mako a motion or 2I l
insist upon, bring the issue to the Board that our witnoscos 22 only be deposed as a panel.
'..'o o x p l a i n ed to you our concerns i
-_ 1
i 124 l.
}
1 both on and of f the record for that.
2
[
In exchango, the agroomont was that the dopositivn l
3 would take place in Now York, and it would be limited to two r
days, two business days.
5 We then want through -- and this has all boon 6
i negotiated -- we asked that wo be allowod to havo Mr. Baldwin 7
go first and Mx. Koller go second this Friday.
You agrood 8
]
to that, but indicated that you had moro questions to spend i
I 9
wt* h Mr. Mowtoski than with Mr. Baldwin, and I agecod I
{
10 l
-- and as I romombor our discuscion, I agrood to go to a
l 11 h
six o' clock.
I?
You took longor with Mr. Daldwin, and that was
- S I
13
- ust tocauso -- you wore asking quostions, I was not, and a/
15 now we havo reachod the situation whoro I have alroady provided l
l 15 i
Mr. Mowieski an additional hour boyond tho t imo.
I think wo 16 havo dono overything that we can comply.
Wo have also p rovidos,
(
II you know, thoso two sots of list for Mr. Daldwin and Mr.
i I8 Mollor, which I think certainly expedited and savod tiro in I'
the cross oxamination of thoso two witnesson.
l 23 If you don't havo any other staturont, wo will 1
21 movo on to tho Stato of Now York.
22 MR. MILLCR Wo both ha'/o mado our st1toronta, and i
125 i
O i
l l
I thoro would no reason for no to repeat anything.
2 MS. McCLESKEY:
I would like the record to show 3
that counsol for Suf folk County is conferring with Counsol I
4 for tiow York Stato.
l MR. MILLER:
The record can certainly reflect 6
anything it waats to, Ms. McCloskoy.
I don't undorstand 1
why you fool compolled to point out those things, but fool 8
froo to point thom out.
MR. GLASS:
Mr. Zahnlauto r, are you ready --
9 j
i MR. 0 AlltiLEUTER:
I am sorry.
I was listoning 10 i
I 11 to Ms. McCloskoy's point, and I wasn't listoning to Mr.
l 12 Mtiler, so I don't oven know what ho told mo.
13 I do not wish to place any tiro constraints Y
I 14 up :n you, Mr.
tillor, in conducting the cronn oxamination
(
C 15 that you havo a right to or the you want to.
If I havo
{
h 16 l
a tiro allotrent, I am froo, and I tool that I would liko 11 to givo it to you if you would 1tko to uno that timo allotront.
j 18 MR. M:LLER:
What La your ponttion an to Mr.
20 y 3wto ggt e n avs tlauttity beyond sovon o' clock.
II MP. CL A0 3 :
You are pustn; his, you know, u 1
22 tnts ttmo.
Lot no just confor off tha roca rd,
i
l 0
0 l
(Mr. Glass confers with Mr. Mowtoski) 1 i
d 2
MR. CLASS:
The Court Reporter has graciously 3
l agrood to stay, so ho can mako a lator plano.
We can work it out that we can givo you another ton minutoc, an! then 4
I give the County some ttmo to wrap up.
Now York Stato doesn't t
]
appoar to havo -- I hope I am not putting words, thoro -- but 4
?
I docen't appear to have any questions.
Wo can procood that 8
q way.
1 9
l MR MILLLR I appreciato your of fer of ton 10 minutos.
I do not fool I can finish in ton minutos.
Perhaps I,-
II in half an hour.
Il j
MR. CLASS:
It would just bo prohibitivo 11 not only on Mr. Kowtoskt, but as woll for the Court 14 Poporter, tocraso I havo to <;ivo the other par
- ton an i
15 opportunity.
I le MR MILLER:
I stick by my statomont, then, 11 that I renorvo my rights to continuo this doponition.
18 l
MP. CLASS:
I don't want to wanto tiro on the
)
reco rd.
Wo ein ar'Juo lator on wherhor you havo thosa r11 hts l'
20 to cororvo.
21 yp..! AltM L CL'TE R :
Are you asking questtuns now 22 for ton minutos?
I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
-X i
2 l
I In the Matter of:
3 LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 1
. 4 (Shoreham Nuclear Power Station, (Emergency Planning) 5 gn5t ;)
l
_x 6
V 7
Federal Emergency Management Agency
)
Region II 8
26 Federal Plaza i
Room 1349 New York, New York 10278 10 l
Wednesday, 27 June 1934 i
DEPOSITION OF JOSEPH H.
KELLER I2 The deposition of JOSEPH H.
KELLER, called for i
examination by counsel for tne County of Suffolk, convenec 13 1
14 0
at 2:07 p.m.,
pursuant to notice, before Rerecca E.
- Eyster, 15 a nocary oublic in and for the District of C o l u.m o s a,.nen 16 were present on Dehalf of the respective carties:
17 On behalf of the County of Suffolk:
18 l
MICHAEL S.
MILLER, ESQ.
Kirkpatrick, Lockhart, Hill, Christooner & Pnillies 19 l
1900 M Street, N.W.
Washington, D.
C.
20036 3
l On cenalf of the NRC Staff:
21 i
ORESTE RUSS PIRF0, ESQ.
l 22 t
Office of the Executive Legal Director l
I U.S.
Nuclear Regulatory Commission wasnington, D.
C.
20555
1 i
interpretation?
j l
A Aside from the, as you characterized it, mechanical 2
githering.
That is my understanding, yes.
0 And Mr. Kowieski then reviewed that working 4
oacer and made the final decision as to the verbiage anc 5
l l
so fortn that went into the cosition paper presented on 6
7 January 20?
8 l
A That is my understanding, yes.
l 9 '!
Q And from looking at your notes, Mr. Keller, or 10 just from your recollection, is it fair to say that you are I
11 unable to identify for me which members of the committee 12 l
l were in tne minority in terms of feeling an issue 13 I
should De either rated adequate or inadequate?
1 14 A
From these notes, aside from myself, I cannot 15 ioentify any individuals.
16 G
Do you know, Mr. Keller, if anyone else nas 17 l
put together this sort of a tabulation of comments and 18 opinions of the RAC committee?
19 A
Yes.
M i
1 Q
Who else has done that?
21 A
Mr. Baldwin and Mr. Kowieski.
r 22 I
Q Did they also do it just yesterday?
4
57 I
breakdown in almost every region I have been in, that this 2
was distributed from FEMA headquarters.
And it has been 3
extant for several years.
l 4
So I don't know who did it, but is my understanding 5
it came out of FEMA headquarters.
6 Q
Are you saying that historically people in the 7
RAC committee just know what areas they are going to 8'
review?
9 l
A Because these documents exist and have existed for c
10 some time, long time members of RACs who have reviewed 11 numerous mlans, I do believe, know that this is mine and that 12 is not mine.
No one is precluded from making an 13 evaluation of any element, but there are certain elements 14 which have greater emphasis in certain agencies, and those 15 are the ones that they are expected to answer.
16 Q
Are all the members of the RAC committee for 17 Region II longstanding members of the committee who have 18 reviewed other plans, to your knowledge?
19 A
Yes.
I better be careful with this one.
I do 20 know they have been involved at least as long as I have, which 21 has been all the reviews we have had.
One of the members in 22 the agency had been on the RAC, had reviewed plans, left the 1
69 c
I i
l 1
I i
have Deen rated adequate?
l 2
A I made no comment.
I did not.
l l
Q You didn't carticicate in any way?
3 I
4 A
No.
I think I did carticipate in the discussion.
Q And in what way did you particioate, for or 5
i 6
against an adecuate rating?
A For the adequate rating.
This clan rectaces 7
i i
8 l
state and local, and into the intent of 0654, C.2.A, this 9
plan meets that intent.
F 10 diceossion of that particular r
G So going inte "na t'
}
- item, C.2.A, four individual members' comments had 4
12 i
argued for an inadecuate rating?
l 13 A
Tnat is correct.
And that, I presume, was the i'
f 14 i
of :ne.orking position of an "I"
to regin with, q
casis 15 U
Q So :nat, Mr. Keller, so that four of :ne 16 i n c i 't i d u a l members' comments going into tne January 20:n l
}
meeting felt the item should oe rated inadecuate, tne item 17 18
}
l ended uo being rated adecuate, and that was due to, as you I
19 j
say, discussion among the members of tne comm ttee?
i M
l A
That is correct.
And I tried to give you the casis j
21 I
of !"at OisCussion.
22 l
Q If I were to as<,
Mr. Keller, :ne four memoers
.,o i
t L
70 l
felt that item should nave been rated inadecuate going into 1
2 the January 20th meet ing, could you identify those members?
i 3
A I nave told you numerous times, unless it is 4
myself, I can make no identification of peocle based on nese 1
5 f
notes.
6 Q
From your recollection can you make an identifica-l 7
tion?
8 i
A I cannot, i
I 9
I Q
Could you make an identification from your i
a 10 recollection from having Deen at tne meeting of any mencers i
11 and the particular cositions taken by members of the RAC t
12 l
committee?
13 l
A Occasionally, certainty not in every cosition, 1
14 I
but I can rememoer some cositions that were taken, yes.
l i
l 15 l
MR. MILLER:
Wny don't we take a brea<.
}
I 16 l
l (Recess.)
I7 l
l l
BY MR. MILLER:
18 G
Mr. Keller, atter tne January 20tn meeting 4
19 wnere tne consensus.as arrived at regardin; tne RAC M
l review, is it fair to say tnat your nex: involvement 21 l
l tne Shorenam otant cama in crecaring your.r'tten
.itn j
22 i
I testimony on cenalf of FEMA?
F e
D e
ATTACHMENT 5
UNITED STATES OF AMERICA I
l 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
X 4
l 5
In the Matter of:
I l
6 LONG ISLAND LIGHTING COMPANY Docket No. 5-322-OL-3 I
(Emergency Planning 7
(Shoreham Nuclear Power Station, ;
Proceeoing)
Unit 1) 8
______________________-----------X
,o 11 I
12 Federal Emergency Management Agency i
26 Federal Plaza, Room 1349 i
13 New York, New York 10278 14 Friday, June 29, 1984 15 Decosition of T H O:1 A S E.
BALDWIN, called for i
16 examination by counsel for the Intervenor, Suffolk County, l
17 taken before Garret,t J.
- Walsh, Jr.,
Court Reporter, begin-l 18 ning at 9:37 a.m., cursuant to notice.
19 1
20 l l s
i 22 i
35 3
5 I
ls i
s i
II thirty-one I think, could you give me an fstimate as to the i
2 number of the thirty-one total implementing procedures, the 4
3 number that you have read in their entirety; is that poss1bLe!
$g A
Yes.
I can estimate that.
From tab to tab, 4
4h 5
on the order of +ive to eight.
And the others I have
~
6 cross-checked with when we have been in discus,sions and 7
examined those procedures and done counts of emergency g
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I 8
workers, et cetera.
$e 9
Q Let me ask you this, Mr. Baldwin.
Do you 10 specifically know whether any member or members of the RAC, l
Il h
11 including Mr. Keller for purposes of this question, have 12 specifically read cover to cover the implementing procedures 13 of the LILCO plan?
i.
-I4 MR. GLASS:
Let me see if I understand this 5:
3 f
15 question.
Do you mean that all the members in total would I
16 have, combined, read them all, or what each -- that there L.ir was at least one individual who read them all?
17 18 I'm a little confused on that question, j
MS. MC CLESKEY:
I have the same confusion, 19 t
M BY MR. MILLER:
(Continuing)
T Q
Let me break it down, Mr. Baldwin.
If I were 21 to go through the RAC members and ask fou about each member 22
36
~
E j
specifically, could you tell me whether that member had 2
specifically reviewed and read the implementing procedures 3
of the LILCO plan?
4 A
All of the RAC members, all of the procedures?
[
5 Q
If I were to go through each member one at a x
3 6
time and asked you?
M3 7
A No.
fj 7:
8 Q
You could not tell me whether that particular g
a..
9 member had reviewed the implementing procedures?
~
10 A
No.
I could not.
11 Q
Are you able to tell me whether you specifically j
12 know that the RAC Committee in total, if you will, all the E
j 13 members, have reviewed the LILCO procedures, all the LILCO g
I.
7 I4 procedures?
?
f IS In other words, if one person reviewed ten and i.
16 another person reviewed eight, and so forth, so that when
(
all was said and done t h a.t the totality of the implementing 5
procedures had been reviewed?
7' 19 Can you specifically tell me whether that has M
been done by the RAC7 21 A
No.
I cannot tell you whether all of these 22 procedures have been read cover to cover.
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Q Can you tell me whether all the procedures have j'(
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Il been reviewed by the RAC?
I'.E!
Do you specifically know that?
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A, I do not specifically know that, no.
1:
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Q Now, let's go back to where we were a few minutes ago.
With respect to the procedures which you said you did not specifically review, the listing that you
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gave to me, can you tell me the members of the RAC, includ-ing Mr. Keller for purposes of this questinn, who reviewed e
5
)
those procedures you did not review?
1 MR. GLASS:
He has already answered that 2
question.
WITNESS BALDWIN:
No, I can't.
Again, I can't 3
- 5 4
tell which EAC members have read which procedures with the
{ i 5.
5 exception of when a reference to a particular procedure is fI]
ff?
6 reflected in the written comments that have been supplied I-7 to us or when they mention it and it appears in my notes 5d 10
}y 18 from a RAC meeting.
t.
i 4
19 BY MR. MILLER:
(Continuing)
I !!
ih 20 Q
Mr. Baldwin, would you look at Appendix A of
..j
'd the plan?
Before we get to Appendix A,
let me ask you, 22 do you specifically know whether the members of the RAC,
-m_ _ _ _
-.4
38 o
including Mr. Keller for purposes of this cuestion, have 3
reviewed the LILCO plan, the one volume plan; do you know 2
t 3
that?
~
we are talking about the A
Are we talking about 2
4 i'
jf S
Appendix?
6 Q
I'm sorry.
I'm asking you about the LILCC plan,
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'1 3
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7 the p la n itself 1 -1 4
8 A
This is it.
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9 Q
-- do you specifically know whether the members at 10 of the RAC, including Mr. Keller, have read'.and reviewed
.j
.l Il the LILCO plan volume?
I'm talking about the one volume.
':t' 12 A
RAC members typically have a matrix, if you
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13 will, of assignments which are keyed to the NUREG 0654
.1 3
I4 criteria document.
And their agencies review the elements l
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15 of the plan with regard to those to which they are assigned.
16 Some review particular elements.
Some c o n c e n t r a t e-s r
on a few particular elements and provide additional comments, 7
i.
and others provide less than full comments.
9 Q
Are you saying, Mr. Baldwin, that some members 19 of the RAC woulc not have, reviewed the entire one volume 20 21 clan?
22 A
Yes.
i 39 o
1 I
Q Now, do you know 2
A Now, I can't speak as to whether or not they 3
have done that or not.
In consolidating the comments, I 4
am a w a r e-o f the e lement s that we got responses on ano how 5
many responses we got from various RAC members in total, 3-
+-
6 so that I know the number that have provided ua'with j,
-k-f
) ;j 7
comments on each element and I know numericality he A many i
1, -
8 rated it in various ways.
i i
9 Q
Yes, sir.
But, having received a comment on 10 a particular element of NUREG 0654 would not necessarily II mean that that RAC member had read the LILCO plan; isn't 4
I2 that correct?
13 A
That's correct.
Id Q
So, back to my question IS A
It w o u '. d not necessarily mean that.
t 16 Q
So, back to my question.
Do you know whether any memoer of the RAC, i n c,l u d i n g Mr. Keller for tnis question, other than yourself has specifically reviewed the 18
/
19 entire LILCO plan?
20 A
Well, I Q
I'm talking about the one volume plan.
21 22 MR. GLASS:
Mr. Miller, at this point we are i
l 40
- l
'l I
getting into a very difficult area.
It's a very strange everybody has shoes 2
area.
I look around the table here,
l 3
on this morning but I could not swear that every single t
4 person at this t a b '. e put on their shoes because I was not i
!I 5
there to see every single person do that.
And I think 4
5%
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6 this is the same type of problem that Mr. Baldwin is find-
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e 7
ing himself in.
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MR. MILLER:
I appreciate Mr. Baldwin's problem.
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9 I'm trying to make'this as simple as I can.
I 10 My problem is that we have been given specific i>
11 witnesses that we are entitled to depose.
I'm trying to 12 find out through the witnesses we have been provided, what
- 'l
)
i tney know about what was done in the RAC review process.
13 And' I think those terms I'm trying to explore with Mr.
14 Balcwin now, what he knows about what other members of the 15 i
16 RAC did.
MR. GLASS:
And I think he has explained these 17 document comments.
He has explained he has reviewed the 18 comments.
He has explained the fact that the comments, 19 20 he has checked them, and they seem to make sense, the 21 cerson couldn't have just made it up from old cloth.
MR. MILLER:
That's fine.
I understand all of
41 0
1 that.
I'm trying to find out though what Mr. Baldwin 2
specifically knows.
I think I'm entitled to do that.
I 3
MR. GLASS:
I'm not objecting to it.
I just 4
want to let you be aware of the problem as I see it.
It's j
i 5
a practical problem that any individual is very careful,
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6 and he is not flip in his answers.
He is respo'nding to
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7 the questions fully.
i 8
WITi4ESS BALDWIN:
I do not have direct immediate a
9 knowledge of which RAC members have read exactly what 10 portions and how extensively their review has been con-t II ducted.
I2 I have reviewed their written comments and i
I3 consolidated t h o.s e, and attended the RAC meeting of the 20th at which point everyone seemed to be quite knowledgeable I4 in tnis clan and able to speak to a wide variety of issues i
15 16 that came up.
17 SY MR. MILLER:
(Continuing) i 18 Q
Mr. Baldwin, it's ' air to say though that you 19 i
just don't know what other members of the RAC Committee, 20 including Mr. Keller for purposes of tnis question, have 21 done with respect to their ceview of the LILCO plan; is 22
- nat right?
a
~4 1
A I know which elements various ceople have re-2 viewed and supplied us comments on.
3 Q
Yes, sir.
But do you know what they did to 4
reach their conclusions regarding those elementi of 5
6 A
It's impossible for me to get inside of their 7
7 heao and to go through their thinking process.
8 Q
I'm not asking you about their thinking process.
E I
9 I'm asking you, do y,o u know what these people did with 10 respect to reaching their conclusions and judgments regard-f I
II ing the LILCO plan?
12 MR. GLASS:
The witness seems to be having some I3 croblem.
Can you give us a definition to help us in some I4 way?
15 I'm not trying to be difficult, Mr. Miller.
I just think you are in a very hard area and any assistance 16 i
l 17 you can provide the witness will be appreciated.
I 18 MR. MILLER:
Okay.
19 BY MR. MILLER:
CContinuing) 20 Q
Mr. Baldwin, do you know what members of the 21 RAC, including Mr. Keller, reviewed to reach their 22 conclusions and judgments as set forth in their comments?
43 1
A Yes.
They reviewed the plan, the inclementing 2
procecures and the Appendix A of the evacuation study.
I l
3 Q
And you specifically know that each member of l
1 4
the RAC and Mr. Keller did that; is that correct?
5 A
Yes.
I know that each reviewed those various 6
parts in order to be able to supply us with t h e'i r comments.
I 7
Q Now, can you tell me what parts or portions of the members l 8
each of the four volumes of the total LILCO p la n l
i 9
of the RAC and Mr. Keller reviewed?
I 10 l
A I have no specific direct knowledge of those i
II how each member went about parts which each member wentl!
I2 their task.
I have no direct knowledge of how each one l
I3 about reviewing this en-ire set of four documents, four a
volumes.
Q Do you know, Mr. Baldwin, if any member of the 16 RAC, or Mr. Keller, reviewed anything other than the four 17 volumes of the LILCO plan in setting forth in reaching j
18 conclusions regarding the adequacy of the LILCO plan?
19 A
There was nothing else that I'm aware of that 20 was submitted to us for review.
21 Q
So, as far as you are aware, they reviewed 22 notning otner than portions or parts of these four volumes;
I 44 c
1 is that correct?
2 A
That's correct.
3 Q
Is it possible, Mr. Baldwin, that members of the 4
RAC and Mr. Keller could have reviewed other material to S
"each their conclusions?
6 A
What do you mean by other material?
I ',
7 Q
Other material.
I 8
MS. MC CLESKEY:
Mr. Miller, what are you 9
talking about?
i 10 MR. f1 ILLER:
I'm talking about other material.
(
I want to try to do this as fast and as quickly as I can, 12 but there are certain words in the English language such as 13 "did" and "other material" which I don't think neeo defin-14 ing.
15 BY MR. MILLER:
(Continuing) l 16 Q
Mr. Baldwin, are you having trouble with my 17 question?
.c 18 MS. MC CLESKEY:
He said he was.
He said ne 1
19 didn't understand what you were talking about.
e 20 WITNESS BALOWIN:
The other material by that 21 I mean, the RAC was asked by FEMA to review the LILC0 Transition Plan consisting of the plan, two volumes of f
I*
45 O
l 1
implementing procedures and Appendix A,
the evacuation plan.
2 And that's all that I'm aware of that the RAC Committee was 3
asked to evaluate.
4 So.there are no other materials that were 5
submitted for review.
6 OY MR. MILLER:
(Continuing) 7 Q
Yes, sir.
I understand that.
But there wculd 8
be other materials that perhaps members could have reviewed;,
o
~
9 isn't that correct?
For example, transcripts of the hear-1 i
'l 10 ings, the Shoreham hearings.
That's other material, okay.
l II MR. GLASS:
That's what we were asking, M r.,
!2 Miller, to help him out.
- 3 BY MR. MILLER
(Continuing)
-i G
Other written prefiled testimony submitted by 15 parties to the proceeding.
That would be other material.
16 There is an array of other material related to this pro-t 17
- ceeding, g
is A
I see what you are saying.
19
?
3 Now, to your knowledge, did any member of the M
- I RAC, including Mr. Keller for purposes of this questinn, t
21 review any such other material?
22 A
I see.
No.
To my knowledge, no one of the RAC 1
1 14
~
46
+
1 members read any of that other material in tne process of 2
doing the RAC review.
3 Q
I asked you a minute ago to look at Appendix A f
4 and we got sidetracked.
Would you look at Aopendix A,
j i
l 5
the Table of Contents?
6 A
(The witness is looking at document.)
1 7
Q Mr. Baldwin, can you, by looking at that Table l
8 of Contents, which is rather sketchy, I guess, can you l
9 tell me what portions of Appendix A you specifically review-f 10 ed7 II A
No, I cannot, because this Appendix is rather I2 difficult to follow for a number of reasons.
The Table of I3 Contents is only one part of it.
But there are a large number o'f maps that separate the pages.
You almost I4 I
you have to go through it page by page and find things in l
15 l
16 I
that fashion.
l I
17 MR. GLASS:
If you had your own set of the plan, l
18 which I understand you did not bring the whole set of the 19 plan, would you be more likely to be able to answer his 20 cuestion as it relates to Appendix A and as to the pro-21 cedures?
22 WITNESS SALOWIN:
Well, Appendix A is the piece i
)
p 145 A
Correct.
Q And, is it fair to say A
And in my judgment, I tried to reflect the views that were coming across from those that provided the comment.
Q Okay.
Let me ask you, do these notes reflect, j
1 Mr. Baldwia, the members who provided the rating?
i For examole, let's look at A.2.A.
You have i
1 indicated in your notes that three RAC members indicated initially the item should be rated inadequate; correct?
i A
Correct.
I l
3 Now, can you tell me, based upon these notes, I
would you be able to tel: me who those three members were?
M R.- GLASS:
Just listen to the cuestion.
He l
1 is just asking you whether you could do that.
i i
WITNESS BALOWIN:
Nc.
I cannot tell you who, i
contractors'I which agencies and/or what agencies, orovided represent these three, i
BY MR. MILLER:
(Continuing)
Q Let me ask you, Mr. Baldwin, outside tne sccoe I
of looking at these notes, can you today tell me, would i
you be able to tell me who the three individaals were that made the judgment that Item A.2.A was inadecuate?
i t
c.:
L i
146 l
1 I
1 A
Cutside the scope -- could you rec hra se your T
2 ouestion?
3 Q
My first cuestion was, if you look at your notes.'
t 4
do these notes provide you a way of being able to say:
- Yes, t
5 I know those three RAC members and they are as follows?
i 6
You have told me based on these notes you can't i
7 do that.
8 A
That's true.
{
9 Q
I'm asking now, irrespective of these notes, i
10 are you able to tell me, for example, the three members of II the RAC who initially thought Item A.2.A was inadequate?
I I2 I
MR. GLASS:
He is just asking you do you l
I3 l
remember.ho t ho se three are.
That's the only ouestion, i
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l witnout going any further.
15
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WITNESS BALDWIN:
We come back to the issue of, 6
do I r *: c a l l it.
I do not recall it.
No.
I co not have a 17 recall on A.2.A of these ag.encies that represent the three 18 I's, which they aren't.
l9 l
i BY MR. MILLER:
(Continuing) 1 2
0 Wnich they are?
1 A
On, I'm sorry.
I do not recall wnicn agencies
>2 comprise those tnree I's.
i l
i l
f 147 I
Q Mr. SaLdwin, how many agencies are representec 3
on the RAC?
3 A
I have to think about that.
Department of 4
I Commerce is not represented on the RAC right now, is not I
5 participating.
6 Q
Did they participate in the Shoreham RAC?
2 i
A fl o.
i 8
Q Okay.
j 9
A Decartment of Transportation, Department of l
10 Energy, NRC, FEMA, U.
S.
Decartment of Agriculture, Food 11 i
and Drug Administration.
Q Wnat aoout EPA?
13 A
Yes, EPA.
j 14 6
I Q
I have seven that you have listed.
I 15 MR. GLASS:
We could refresn his memory by 1
16 giving him a section of 44 CFR if you want us to do that.
17 l
BY MR. MILLER:
(Continuing) l 18 l
Q WeLL, let me ask, Mr. SaLdwin, are there eight 19 different agencies on the RAC, or were there eight cifferent l 1
20
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agencies represented on the RAC for Shoreham?
31 A
Just a moment.
I'm trying to make a tis..
22 l
1 l
L
l l
l MS. MC CLESKEY:
I would like to note for the y
l record that a list of the agencies that were represented j
2 on the RAC were sent to counsel for Suffolk County about a 3
month ago by counsel for FEMA.
4 s
WITNESS BALDWIN:
The list is FEMA, 30E, NRC, 5
6 USDA, FDA, DOT, EPA, and there are two outside. contractors 7
that suoplied comments, myself from Argonne Laboratories, I
l ANL is the abbreviation, and Josech Keller from Idaho k
8 l
I National Engineering Laboratory, INEL.
9 10 BY MR. MILLER:
(Continuing) i I
Q Going back to the one examcle we seem to have l
11 I
12 focused on, Mr. Baldwin, the A.2.A element indicates eight I
i 13 comments werc received.
t i
14 Can you tell me which representative of the RAC 15 did not submit a comment on that carticular element?
j l
i 16 A
No.
l 17 Q
Are you saying, based on these notes, you cannot 18 tell that information?
19 A
Nc, I can't tell that information.
20 Q
Do you have an independent recollection as to g
I 21 which agency, which individual, betseen yourself and Mr.
l l
32 Keller, did not submit a comment on that element?
l I
l
)
149 1
A No, 'I don't.
I Q
Mr. Baldwin, is it fair to say that if we went i
2 I
3 through this complete listing of seven pages of your notes, would you have any indeoendent recollection as to particular 4
i' 5
members who presented comments to the RAC with respect to I
6 the various elements of NUREG 0654?
t 7
A I have a recollection of the substance of the i
t 3
comments that were submitted.
l 9
G Yes, sir.
Not the substance.
Can you tell 10 would you be able to tell by looking at these notes, for l
example, which agencies and whether you and Mr. Keller 11 l
i 12 oresented comments for each element of NUREG 0654 reflected on your notes?
13 l
l 1
1 14 MR. GLASS:
I don't understand that q u e s t i o r..
I i
l 15 l
I t h i r.k you nave a compound cuestion there.
I 16 MR. MILLER:
I'm trying to ao this the shorthand I
17 way.
18 BY MR. MILLER:
(Continuing)
I9 G
Mr. Baldwin, what I'm trying to get at, look at j
i i
fD that very first element, A.1.A.
And that reflects five i
t j II comments.ere received and m asking, do these notes, j
f 22 first of all, reflect which agencies or individuals of the l
l 2
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l.
e t i RAC oresented these five comments?
2 A
No.
3 Q
And do you have any independent *ecollect10" 4
Are you able to tell me which five agencies or individti 'll B
5 orovided these comments on Element A.1.A?
6 A
f4 0 t in specific detail, no.
7 Q
Would your an;wer be t ii e same for each.JUR d 8
element set forth on the seven c4945 of four notes?
9 A
Yes, it would.
0 Q
And I assume, Mr. Baldwin, that you would il ")
f I
be unable to tell me which agencies or individuals wer" i
2 in the minority initially with respect to ho w an item i
3 of NUREG 0654 should be rated; is that correct?
4 A
Could you ask the question again, please' 5
Q For each lement of NUREG 0654, are you acI"
'2 l
6 tell me, based on you notes or an>tning else,
.M':n 88""3' r
t or individuals of the RAC were at '. e a s t initially in fh" i
i
'O minority with re st f c t to how an item should be ra:ed?
9 A
Which particular agencies, no.
I would not ' * "
aole to do that.
I Q
Are you a b l e, fi r. Baldwin, based on your I
'2 or anytning else, to tell me.nien agencies and incie 18 '
1 I
.a I
t o
etenent of NUREG 0654 should be cated adeo; ate thought an J
individuals of the RAC thought an ano which agencies or 2
element should be rated inadequate?
3 l
A I can tell you with resCect to my own comments 4
l i
from this.
l I,
Q These comments would reflect, for e,m a m c l e, three i
6 i n a d e o u a t e. ';
7 i
of eight thought adequate; five of eight thought l
indivicua(s'--
But could you tell me the carticular agencies or 8
l A
Are we speaking of A.2.A?
9 0
I'm trying to do this without talking about any 10 11 carticular element.
Okay.
I'm trying to ask you, do you
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nave knowledge and can you testify about what particular i
12 I
13 agenci.es enougnt, regarding how an item shoutd ce rated, i
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la ettner as adeouate or inadequate?
MR. GLASS:
At what coint in time?
15 MR. MILLER:
As of riant now.
16 l
17 BY MR. MILLER:
(Continuing) i 18 Q
As of the time, ti r. Ba(dwin, comments were I.
l 19 initialty swomitted br the RAC memeers.
Okay.
Now, as
}
10 of tnat time, can vou teit me for any elements of NUREG h
21 0654 which agencies or individuals of the RAC thought tne t
22 ite9 shoulo De rated ade4Wate and wh1Ch Jgencies cf i
i i - - -
[
individuals initially thought the item snould be rated g
inadequate?
A Gi.en the amount of information that I have had to hold in my head about all of t ii is 1ateriaL, both otan i
and comments and resisions thereof, it would be impossible for me to try and recall,without making a great many errors l
in it, which agencies provided whicM comments.
f This table does one thing onty for me.
It f
crovides me with a numerical breakdown of how the rating came out and it gives me some essence of the substance of I
the comment that was provided to us.
It summarizes that.
l l
Q Now, Mr. Baldwin, you nave told me that your review crocess in terms of what you did to reach judgments l
l regarding the adecuacy of the LILCO otan under NUREG 0654 4
l always consisted of looking at 0654 ina tnen the LILCO otan, I
l CorftCt?
A Right.
I i
Q Can you tell me, or do you know, whet nembers of the RAC Committee and Mr. Keller, what tney specifically did I
l to reach tneir judgments regarding the adecuacy or inadeauacy i
of the LILCO otan?
I
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A No.
I can't get into tneir thought orocesses i
I i
L
J 155 l
.L.
A 1
s I
i 1
i't at some Length this morning.
2 MR. filLL$4:
II understanc you h,a v e an objection.
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I
_BY TiR. - M I L L E R :
(Conti,uing) 3 4
.. Q Hr. Sapdwin, can'ycu'rell'me, do you know what 5
RAC members did?.
~.
6 l
A Well, the casis for tneir as I've said 7
tefore, the basis for the draft.orking document,that we 8
took into.he 20th meeting was sapplied in writing.
In 9
the crocess of doing t r t'. c 3 n s o l i t a t i o n, I either requested
\\
10 Roger Kowieski or R o b e r-t A.: e r n o o eecontact that RAC 11 membsr and provide us w i.t h clar: fica tion a s to what it 12 meant, or I called thec person, Or we out it in the document 13 and t-h e n
'w e discussed,'t zc the RAC 9eeting on Qanuary 20th.
14 Q
Yes, sir.
Lct's back.o.and make sure we unoer-15 stanc one another, 16 I'm t-3tkirs about t 9 e, ' ' 't i tial comments that were I7 presented on Revision 3 Ly nesbers of the RAC.
Do you II know.what do you personally < :: w. hat those. embers of I'
the RAC'did to r e a.; h judgments 3; t0 present their conments I
i s
{3 reg.2rcicg the adecuacy or inaceo.a:y of the LILCO plan?
I l1 21
- s Inis is one coint
."e e I.ouldn't want you to l
A J
j 2
cresume or to sceculate, M..
Ba.:.
I want to Anow if'you !
i s
I 1
i 1
I
156 9
-j cersonally know this information.
i 2
A I do not personally know, because I didn't 4
3 oersonally watch them do the RAC review, go page by page, 4
see what other guidance documents that they might have 5
that referred to the roles of their agencies and their 6
responsibilities.
7 Q
Yes, sir.
I'm not asking if you personally 8
watched them.
It would include, did you ever have a i
9 conversation with members of the RAC in which you said, 10 or discussed, what those members did 11 A
lio,
r 12 Q
in their involvement with the Shoreham plan?
13 A
No.
No.
I 14 Q
Did you ever have any discussions of any kind 15 in that regard?
16 A
As a preliminary discussion to the RAC meeting i'
17 on January 20th, there w a 's a good deal of informal conversa-18 tion about that, about how extensive the clan was and how I9 much time it took for them to do it.
And based on that, D
that has been my exposure to it.
That would be my first-2I i
hand knowledge of how pecole went about their clan review.
22 Q
Is it fair to say, Mr. Baldwin, that eersons of
O er ATTACHtfEny 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
_x 2
i In the Matter of:
3 LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 I
l 4
l (Shoreham Nuclear Power Station, :
(Emergency Planning) 5 Unit 1)
~
-X 6
i Federal Emergency Management Agency 7
Region II i
26 Federal Plaza 8
Room 1349 9
New York, New York 10278 Wednesday, 27 June 1984 10 11 DEPOSITION OF PHILIP MC INTIRE j
l 12 The deposition of PHILIP MC INTIRE, called for 13 examination by counsel for the County of Suffolk, convened 14 at 9:43 a.m.,
pursuant to notice, before Rebecca E.
- Eyster, 15 a notary cublic in and for the District of Columbia, when 1
16 were present on behalf of the respective carties:
17 On behalf o, f the County of Suffolk:
18 MICHAEL S.
MILLER, ESQ.
Kirkpatrick, Lockhart, Hill, Cnristooner & Phillics 19 1900 M Street, N.W.
Wasnington, D.
C.
20036 M
On behalf of the NRC Staff:
21 ORESTE RUSS PIRF0, ESQ.
22 Office of the Executive Legal Director U.S.
'luclear Regulatory Commission Wasnington, D.
C.
20555
69 I
A What do you mean by the underlying basis?
I know 2
what the basis of the RAC review are the comments orovided by 3
the RAC members.
4 Q
Now, do you know what conclusions or determinations or judgments were made by the individual members of the 5
0 RAC committing in forming the RAC report?
Do y o,u presonally I
know that information?
A I know that their reports and their portions of 8
9 the material that was used in the RAC report was done by them because they have certain levels of expertise, and we rely 10 11 on their expertise to provide information in the RAC review regarding the plan and its meeting of the 0654 standards.
12 C
I if we look at the 13 Q
More specifically, looking
=
14 RAC report, are you in a position or do you know what
(
i l
15 conclusions or judgments were made by the individual memoers 16 of the RAC committee in forming the RAC recort, cutting 17 together the RAC report?
18 A
No, I do not.
17 MR. GLASS:
Mr. Miller, you are attemoting to 20 go through each of the individual contentions.
MR. MILLER:
I am not attempting to do
.nat.
That is why I am trying to do this in a general 6; a s i s.
l 71 Q
1 Q
Other than cortions of the LILCO olan, co you 2
know what other documents, if any, would have been reviewed by members of the RAC committee in forming their conclusions 3
I as set forth in the RAC report?
4 5
A Certainly NUREG 0654 and some of the radiological-6 related standards.
There are other guidance doduments whiCn 7
I am sure were reviewed by the peoole.
8 Q
Portions of the LILCO plan, NUREG 0654, other
{
guidance documents.
Would you know of anything else that I
9 i
10 the memoers of the RAC committee reviewed or looked at II in forming their conclusions and judgments as set forth in :ne I2 RAC report?
I 13 i
A No, I wouldn't.
But followed the same crocess tnat i
- N tney nave followed for every other site in tne region.
15 From everything that I Can understand, it was a full, formal I0 RAC review of which they have done several crevious to thi s 17 one.
l 1
18 i
G I am trying to understand specifically what was done 19 by these individuals.
20 Is it fair to say that you just do not know wnat 21 these incividual members would have done in cutting together 22 the RAC report other than looking at port ions of
-he LILCO I
72 e-b I
plan, NUREG 0654, and other guidance documents?
1 2
A And submitting a report to the RAC chairman and 3
then coming to the meeting on January 20.
4 Q
Other than those things, do you know of anything 5
eLse they would have done?
6 A
I do not know the individual work h a b i-t s of the 7
RAC nembers, no.
I 8
Q I am not look.ng at the work habits as much as what l
tney looked at or reviewed in putting together'the RAC recor l
i A
As I have answered before, they used the same 10 II material, it is my understanding, that they do for any formal i
I2 RAC review.
C I
13 Q
Do you know, for example, Mr. McIntire, did mencers of the RAC committee look at the prefiled written l
5 l
testimony in tnis proceeding, in the Shoreham proceeding?
I 16 A
Our prefiled testimony?
j Q
Not FEMA's.
Testimony of other parties in the 17 proceeding, would they have looked at that, do you know?
18 A
I don't know for sure.
It is my assumption that they 19 '
did not because they would not have access to this material.
XI I
The reason that I have access to it is because Mr. Glass I
l receives copies of all transcripts and, therefore, I rely on i
22 p
y b-j a.
N 4
ATTACEHiENT 7 I
---n--.
--n-e-
-n-,
w n,
4 Wal l
'1
.rOColv;d.
j jj
_2 JUDGE LAURENSON:
Does FEMA or the Staff have 3
a position on both of these Motions?
4 MR. GLASS:
I just want to make one note for the 5
record.
The RAC Review, which is attached to the FEMA 6
testimony, was very carefully drawn, in one way, to assist 7
this particular Board.
The legal concerns were set out as 8
a separate attachment, so that if that issue did become a 9
major part of this hearing, or if there was a change in the 10 status, or a definition of the status of the legal concerns, 11 that the Board would be able to utilize that document to 12 assist it in its findings.
That is the only comment I have 13 to make at this time.
y,,
s'!2l2
~
14 JUDGE LAURENSON:
That goes to the State's Motion, 15 but what about the County's Motion to compel production of 16 documents by FEMA, to postpone the cross examination, and 17 to issue subpoenaes for the RAC?
18 MR. GLASS:
I did not realize we were going to get 19 to that one this quickly.
We seem to be dealing with a number 20 of Motions at the same time.
21 I will state again, for the record, my objection 22 to the fact that we have to comply on such short notice.
23 Basically, the County is asking for three things.
24 They are asking for additional time to depose Mr. Kowieski..
5 25 They are asking to acquire the thirty documents that were held
f 1
to be priviloged, and th&y wara c2 king to dopoca tha RAC
)$7.:).
2 members, all of which would result, according to suffolk 3
County, or would require, according to Suffolk ' County, the 4
postponement of the testimony of FEMA's witnesses.
5 I must admit having read the Suffolk County's 6
Motion, I am quite concerned about the number of mis-7 characterizations that are contained therein, and that is the 8
reason that I am hesitant to argue at this point, because I 9
think it is necessary for a full record to indicate line 10 and page citation to overcome it.
11 But considering where we are today, I will proceed, d
12 They raise three points.
Referring back to the Appeal Board's tc~.:_
13 decision.
They raise the issue of whether there were m.
- =m-14 significant differences of opinion of the RAC members on 15 important issues affecting the adequacy of the LILCO Plan.
16 Whether the members would be unable to defend or explain 17 the underlying basis of FEMA's determination, or number three, 18 whether they relied in an inordinate degree, on the views 4
19 of the others.
20 None of these three tests are met.
21 It is very obvious by a reading of the transcripts c 22 and my own attendance there, and I think the other members 23 also in attendance, that they did not establish a compelling 24 need.
The witnesses consistently, even though deposed bb 25 separately, stated clearly for the record that there was no I
4-60w_,1 12,118 i
I I
disagreement by the individual RAC members with the final 2 -
RAC Report.
3.
Not only did they reach consensus at that 4
particular January 20th meeting, which is referenced in the.
5 various Motions, but in addition, in discussions that took 6
place after the fact, all three witnesses that were asked 7
on this particular area, stated for the record that all the 8
RAC members were happy with the findings.
9 There was nobody beaten down into subjugation 10 to admit or accept a conclusion that they were not satisfied 11 with.
FEMA witnesses produced information as to' what they 12 relied on.
They fully discuss the basis of the RAC meeting.
13 g[;
The testimony itself and the RAC attachment contains not only
==
14 the ratings, but the reasons therefor.
15 The RAC Report does not provide a naked review 16 of adequacy or inadequacy, but comments do give the basis for 17 the rating.
The instant Motion of Suffolk County states that 18 FEMA's witnesses provided information, including the number 19 of comments received from RAC members on each NUR2G 0654 20 element, prior to the meeting, with all RAC members in 21 attendance.
The notes that were provided by Mr. Keller and 22 Mr. Baldwin also reveal the number of comments which were 23 disagreed, at least initially, with the final RAC findings 24 for each NUREG element to the LILCO Plan.
' Nb
~
M Neither Mr. Keller nor Mr. Baldwin's notes i
_12,119 7 -W n11 reveal, however, the identities of the dissenting RAC I
and that seems to be what the Suf folk County attorney I
$_$_h.
2
- members, 3
are inquiring.
The statement that the reasons for the dissenting 4
views were'not given, and I disagree with the ' characterization i
5 is a of dissenting views,.they were preliminary' comments, 6
7 mischaracterization of the strongest type.
I understand by the filings provided by Long 8
Island Lighting Company, that you did receive copies of the 9
two sets of notes that were provided by Mr. Keller and Mr.
10 11 Baldwin.
Those notes were gone into in great detail by 12 13 Mr. Miller at the deposition.
He inquired into the underlyint
?.'.**.
W basis and the reasoning and what the notations meant.
14 In addition, FEMA provided and identified for 15 the record the preliminary comments of Mr. Keller and Mr.
16 The reason we did this is we understood the chillia 17 Baldwin.
but we felt that since these individuals wcre witnese 18
- effect, appearing before this Board, that we would provide that 19 20 information.
We were under no obligation to create those 21 i
22 notes.
They were created by the individuals, and I had not seen them prior to the depositions,.to assist those individu!
23 in answering the questions that may be posed by the County, 24
- E 25 and they utilized those notes.
Mr. Keller utilized his, an@
dE=.
- \\
(
4-8-W21:
J 12,120
~
1 we provided them to Suffolk County's attorney; Mr. Baldwin T.e=
"~'
2 utilized his, and we provided them to Suffolk County.
3 Suffolk County complains that they did not get 4
Mr. Kowieski's notes.
It was not necessary for Mr. Kowieski i
5 to utilize those notes at the hearing, since we provided him 6
Mr. Keller's and Mr. Baldwin 's notes, and he was able to answer 7
the questions from them.
E I repeatedly gave Suffolk County the opportunity 9
to inquire.
I indicated to him that they had not laid any 10 groundwork or any basis for the production.
He did not 11 sursue it.
He did not inquire.
He asked questions, and those 12 questions were answered by utilization of these other notes.
([j 13 The County claims that they attempted to ascertain 14 the reasons for and the substance of the RAC members dissenting 15 opinions.
They were given that information.
The only thing 16 that we refused, and the witnesses were directed not to provide 17 were the identities of the individual RAC members who held 18 those preliminary reviews.
It is a bold assertion that is 19 important for the County to determine which RAC members 20 dissent $d from the'various RAC findings.
21 This issue has been discussed before the Appeal 22 Board.
It is clear from the record there was no dissent from 23 the final RAC Report.
There is no reason given why it is necessary to know which member disagreed at any time with 24
' W; 25 the findings in the final RAC Report, and it is a misstatement i
1 of fcet,- beccuco they didn't diccsnt from the finEl RAC Nhy-2
' Report.
3 The individual ratings submitted a number of weeks 4.
before may not have.been the same as contained in the RAC 5
Report, but they did not have the benefits of the RAC 6
meeting when those comments were submitted.
7 In addition, Mr. Miller was able to ascertain 8
from'the witnesses, and he repeatedly did from all four 9
witnesses, the process that took place and was able to 10 ascertain how the final decisions were arrived at, how 11 consensus was reached.
i 12 They also indicate -- there is a statement L,,.
13 on page 13 of Suffolk County's Motion, that my opportunities (i@F-14 to question Mr. Kowieski and Mr. Keller and Mr. Baldwin went
~
15 to their involvement in the RAC.
Not true.
No -- there 16 was no such limitation.
The information provided in the 17 nor.es indicated the number the cadequate and the number of i
18 inedequate ratings submitted for each element in the i
19 individual RAC comments, and the reasons for those comments N
were either provided in the RAC Report and differences betweeR i
21 the collegial. RAC ratings and the individual RAC comments werC 22 contained in the material provided by Mr. Keller and Mr.
Z3 Baldwin.
24 '
We also have the question of the time period
+.
, $.WE 25 that Suffolk County indicates that they were cut off in their-i
T MN wUauw 1
ebility to conduct thair cro20 cx:mination.
l"
- jhp 2
When we originally determined how the depositions 3
would take place, it was a negotiated process.
FEMA agreed
)
4 to allow Suffolk County to depose the individuals as 5
individuals, and not as a panel, tind in exchange it was 6
agreed that the depositions would take place in New York 7
for two business working days.
8 Later on it was determined that we would prefer 9
to have Mr. Baldwin go first, and Suffolk County indicated 10 they would appreciate having some additional time, because 11 they felt they needed more time with Mr. Kowieski.
The 12 original agreement, as I remember it, was that we had 13 agreed until six o' clock.
There was no attempt to try to ter 14 cut off, but there has to be some sort of reasonable agreement, l
15 especially when you had mutual consent on the original 16 agreement.
17 On the first day of depositions, there had been 18 no agreement as to an extension of time, and FEMA voluntarily 19 kept the witness there an additional hour.
A review of the 20 transcript will indicate that no more than ten or fifteen 21 pages were taken up by any other parties in their cross 22 examination, during the deposition of Mr. Kowieski.
The 23 original agreement dealt with two business days, and included 24 time for all the otner parties.
So, there certainly was no Gt HiF 25 l
inordinate amount taken at that time.
4-11-Wal 12 144 1
In addition, what raises some questions as to 2
whether Suffolk County was under the impression that there 3
was additional time needed or agreed to, was the fact that 4
none of the other parties were aware of any additional time, 5
nor was the court reporter, who had to reschedule his flight, 6
aware of such changes.
7 In addition, we went, instead of six o' clock, 8
we went until seven twenty-two, and it is only because the 9
Suffolk County elected to spend so much time with Mr. Baldwin, 10 which was supposed to be a short deposition, that we did not 11 start until a little bit before four o' clock.
In either case, 12 the County had almost three and a half hours to depose Mr.
13 Kowieski.
- 7__
14 We tried to again rearrange Mr. Kowieski's time, l
15 and we offered the County an additional ten to fifteen 16 minutes, and they indicated they could not complete it in that 17 time, and they refused that offer.
18 There has been no showing in the filing by 19 Suffolk County that; a, there is need to have additional time I 20 by Mr. Kowieski; that, b, that they have a need for the 21 thirty documents, or a right or need to depose the RAC 22 members.
This Board has addressed before the issue of l
23 the identification by FEMA of who its witnesses shall be, 24 and who shall be deposed.
$.$x 25 If it would assist the Board, at least on
g,,
1 l
1 Mr. Kowiccki'c d3po3ition transcript, I.can.giva'youlin3cnd.j j[k' page, for-where Mr. Kowieski discussed 'the basis of his 2
8 testimony, discussed the personal notes and the ' reason we j
4 withheld them, and the fact that.no foundation was laid for 5
Mr. Kowieski's notes.
That it was not pursued.
That the 6
process was explained.
That there'was no disagreement by 7
the members of the RAC and. that they reached consensus, that 8
about the assumptions utilized by the RAC.
About the 9
format of the final RAC Report.
His involvement.
His 10 comments.
The RAC meeting.
The fact that Mr. Kowieski statea 11 on page 86, lines 3 through 7, that I can recall the substance, the substance of the discussion wh'm it was inquirb 12 13 if he' could provide information as to the RAC meetings, the
~~
14 changes that took place to reflect the RAC concerns, and the 15 handling of the differences in ratings.
16 For all the above reasons, I respectfully submit 17 that the Motion of Suffolk County should be denied.
18 JUDGE LAURENSON:
All right'.
We will take a 19 brief recess and consider both of these Motions, and we will 20 be back with our decision.
21 MR. McMURRAY: Excuse me, Judge Laurenson, the' 22 County has been accused of mischaracterizing the record, and 23 I think the County ought to have an opportunity to respond 24 to the comments made by Mr. Glass.
4 26 MR. BORDENICK:
Judge Laurenson, I would also
... m
I 12,127
-#5-1-SuzT 1
H;w var, tharO waro c rtain cgracmenta rccch d 2
between the County and FEMA.
The County used its time as 3
it sees fit.
It agreed to two days.
If it decided to spend 4
substantially all of Friday with Mr. Baldwin and leave very 5
little time for Mr. Kowieski, that's their choice, and that 6
is a de. cision they will have to live with.
7 In summary, the Staff fully agrees with FEMA 8
that the County's motion should be denied in all respects.
9 JUDGE LAURENSON:
We will get to Mr. McMurray's 10 request in just a moment.
11 (The Board is conferring.)
12 We have considered the County's request to re-13 spend, but we decided that we will not allow a response 14 here.
So, at this time we will consider the positions of 15 the parties and we will be back with a ruling on these two 16 motions.
17 (Short recess.)
18 JUDGE LAURENSON:
The thrust of the County's 19 mction is that the County believes that it has established
%)
the necessary facts to be entitled to an Order that FEMA 21 should be required to turn over the thirty predecisional 22 documents which the Appeal Board held were privileged and 23 not discoverable.
24 The County reviews the history of this dispute 25 and then cites and attaches portions of the depositions of
12,128
- 5-2-SuST 1
tho fcur FEMA witnac;oc teksn Juna 27th cnd Juno 29th.
2 g
During those depositions, FEMA voluntarily produced some 3
notes prepared by witnesses Keller and Baldwin prior to 4
their depositions.
These notes reflect the number of com-mentswhichdisagreedatleastinitiallhiththefinal 5
6 RAC findings for each NUREG 0654 element;pf the LILCO plan.
7 However, the County complains that these notes 8
do not identify the dissenting RAC members or the reasons 9
for their dissenting views.
The County believes that it is 10 important for it to determine which RAC meirbe s dissented r
11 from various RAC findings.
This is a complete about-face 12 from the County's position before the Appeal Board where at 13 Page 17 of the Appeal Board decision, AI AB 773, it is 14 stated, " Counsel for the County disavows any particular 15 interest in the names of individuals putting forth specific 16 views.
She seeks only the basis of the RAC conclusions."
17
!!oreover, the County does not attempt to explain 18 why it has now become important to have this information.
19 While the County speaks in terms of its right to probe the 20 basis of the RAC review, the County has failed to show that 21 it has established the compelling need for these documents 22 which the Appeal Board found absent last month.
23 We agree with LILCO that the County has failed 24 to meet any of the preconditions to further discovery set 25 by the Appeal Board.
At this time, Suffolk County has not I
,----,i-- - - - - - -.
-, - - ~,
" ~
12,129
.#5-3-Su;T 1
catchlich;d "cignificent difforcnc;a of opinion cmong 2
members of the RAC on important issues effecting the 3
adequacy of LILCO's plan."
~
4 Moreover, the County has not established that 5
these FEMA witnesses are unable to defend and explain 6
adequately the FEMA findings or that the witnesses view 7
were inordinately derivative of other views.
Unless the 8
County makes such a showing, the executive privilege pre-9 cludes probing the individual views of individual RAC 10 members.
11 While we prefer to dispose of this motion on 12 the merits so that all parties will understand the test 13 we will apply to the cross-examination of the FEMA witnesses, 14 we also deny this motion for the reason cited by LILCO 15 that it is inexcusably late.
Although these depositions 16 were taken a week earlier and presumably the County knew 17 it would have to file the instant motion, it waited a full 18 week after completion of the last dep6sition before filing 19 this motion.
That left only one business day to consider 20 this request before the hearing was to resume.
21 We find that under these circumstances the un-22 timeliness of the motion would be a sufficient cause to deny M
it.
24 In conclusion, all three requests of the County l
25 are denied at this time.
We will carefully monitor the
~
\\
12,130 of5-4-Su;T 1
FEMA tactim?ny during th3 cCurc7 of thic ha ring to dotcr-2 mine whether a different result should obtain.
3 MR. MCMURRAY:
Judge Laurenson, I think in 4
light of the fact that the Board has focused on a quote 5
taken from the Appeal Board decision, and the County's view 6
at this time that that quote was taken out of context, I 7
think it would be appropriate for the County to be given an 8
opportunity to respond both to Mr. Glass' statements, LILCO's 9
response to the County's motion, and to the Board's ruling 10 and ask for reconsideration.
II JUDGE LAURENSON:
Well, let's move on first of 12 all, and then we will take up your motion for reconsidera-13 tion.
14 New York presented an oral motion here to stay 15 the cross-examination of the FEMA witnesses.
That motion 16 is untimely and could be denied for that reason alone.
How-17 ever, we further note that New York cites no legal authority 18 or precedent to support its assertion that the mere pendency 19 of legal issues in the State courts precludes going forward 20 with FEMA testimony.
We know of no such precedent.
21 Good case management requires that we deny the 22 New York motion and proceed with the testimony.
23 Now, getting back to the County's motion for 24 reconsideration, I think'the point of our comment about the 25 statement made by your counsel, your co-counsel, before the
r 12,131
- 5-5-Su;T IL Appen1 Board wac that it was difforcnt then the positicn o
[
2 you are taking here, and that in any event the County has a
given no reasons to explain why it now believes that it was 4
important to receive the individual views of the RAC members.
5 And that's the basis on which we ruled, not on the basis of 6
any quote from your counsel at th6 Appeal Board hearing.
7 MR. MC MURRAY:
Well, the point I wish to make, 8
Judge Laurenson, is that the position of the County before 9
the Appeal Board is perfectly consistent wit 1 its position 10 now.
What Ms. Letsche was saying in that quote that you 11 lifted from the Appeal Board opinion was based on a request 12 for FEMA documents.
What M6. Letsche was saying at that is time was that we were not asking for the. identification of 14 the individual RAC members at that time, because we didn't 15 know whether there was unanimity or lack of unanimity; and, 16 therefore, it was not considered important at that time to 17 determine what their individual opinions were, if in fact 18 there was unanimity.
19 But, as everybody recognized, the Appeal Board 20 and all parties present, was that if there was a significant I
21 lack of unanimity then the identities of the individual RAC 22 members and their individual opinions would, of course, be u
relevant.
And that is why we are now asking for the 24 identity of the individual FEMA members and their opinions, i
2 because as it turns out at the depositions it was revealed
12,132 I'
65-6-Su;T that beforo tha Jcnuary 20th me ting th2ro wac.cubatantial 2
lack of unanimity.
And then out of this meeting came some 3
sort of consensus.
And we were not able to determine how 4
this consensus was arrived at.
5 That's the thrust of the County's motion.
6 JUDGE LAURENSON:
The thrust of our decision was 7
that you have not established significant differences of 8
opinion among members of the RAC on important issues af fectirg the adequacy of LILCO's plan.
And so there is nothing in 10 that argument that you made that affects our decision here.
II MR. MC MURRAY:
We were barred from doing so, 12 Judge Laurenson.
That's our entire point.
13 If you look at the Baldwin and the Keller notes, I4 it shows that people went into that RAC meeting with sub-15 stantial differences of opinion.
If you look at LILCO's 16 motion, I think they attached the relevant notes, and it 17 shows that for many, many of the issues there was a lack of 18 unanimity.
And then apparently out of this all came some 19 sort of consensus.
And we were barred from finding out 20 how this lack of unanimity somehow became a consensus, 21 whether people were -- whether they took'a vote, or whether 22 or not expert opinions were overridden by certain members of 23 the RAC Committee, those types of questions.
We were not able to find that out.
So we don't 25 know whether or not in the end ehere was a substantial
12,133 95-7-Su;T 1
dictgrecment.
The County's motion for re-JUDGE LAURENSON:
2 3
consideration _is denied.
We turn next to the LILCO motion'to admit LILCO's 4
6 supplemental testimony on Contention 24.R, the letter of 6
agreement with Connecticut.
On June ;20, 1984 LILCO filed a 7
motion to admit supplemental testimony on Contention 24.R, along with the supplemental testimony of Dr. Cordaro and a
9 William F. Renz.
And a letter dated May 22, 1984 from Mr.
Ronz to Frank Mancuso, Director of the Connecticut Office of 10 11 Civil Preparedness, and the response from Mr. Mancuso to 12 Mr. Renz, dated June 14th.
New York and Suffolk County oppose the motion 13 14 to admit the supplemental testimony and attachments, whereas 15 the NRC Staff supports LILCO's motion.
16 In LILCO's prefiled written direct testimony in 17 chief on Contention 24.R, which was filed March 2,1984, is LILCO attached and relied upon a letter dated December 15, 19 1983 from Frank Mancuso, Director of the Office of Civil 20 Preparedness for Connecticut, to Donald A.
Devito, Director 21 of the Office of Disaster Preparedness for New York, to 22 establish that connecticut had agreed to assume responsibiliti 23 for implementing protective actions for the portion of the 2
24 Shoreham fifty mile ingestion exposure pathway within 26 Connecticut.
l l
l l
L
i
)h i
I a 61.
... L. M UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 04 d[ Jg Before the Atomic Safety and Licensing Appeal Board D.'Qg
)
l:
In the Matter of
)
)
LONG ISLAND LIGilTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copics of SUFFOLK COUNTY BRIEF IN SUPPORT OF ITS NOTICE OF APPEAL OF Ti!E JULY 10 ASLB ORDER DENYING PRODUCTION OF DOCUMENTS BY FEMA AND ISSUANCE OF SUBPOENAS TO Tile MEMBERS OF THE RAC dated July 26, 1984, have been sfrved to the following this 26th day of July 1984 by U.S. mail, first class, except as otherwise noted.
James A.
Laurenson, Chairman
- James B. Dougherty, Esq.
Atomic Safety and Licensing Board 3045 Porter Street, N.W.
U.S.
Nuclear Regulatory Commission Washington, D.C.
20008 Washington, D.C.
20555 Mr. Jay Dunkleberger Dr. Jerry R.
Kline New York State Energy Office Administrative Judge Agency Building 2 Atomic Safety and Licensing Board Empire State P l a.' a U.S.
Nuclear Regulatory Commiasion Albany, Now York 12223 Washington, D.C.
20555 W.
Taylor Reveley, III, 1:sq. #
Mr. Frederick J.
Shon
- llunton a Williama Administrative Judge P.O.
Box 1535 Atomic Safety and Licensing Coard 707 Cant Main Street U.S.
Nuclear Regulatory Comniusion Richnond, Virytnia 21212 Washington, D.C.
20555 Edward M.
Barrett, Esq.
Spence Perry, i:ay.
General Counsel Asnociate General Counnel Long Island Lighting Company Federal I:mergency Management 250 Old Country Road Agency Mincola, New York 11501 Washington, D.C.
20472
1 y-Y Mr. Brian McCaffrey Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham a Shea Shoreham Nuclear Power Station P.O. Box 398 P.O.
Box 618 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Dredes Marc W. Goldsmith Executive Coordinator Energy Research Group, Inc.
Shoreham Opponents' Coalition 400-1 Totten kond Road 195 East Main Street Waltham, Massachusetts 02154 Smithtown, New York 11787 Jool Blau, Esq.
Mill! Technical Associates New York Public Service Commission 1723 Itamilton Avenue The Governor Nelson A.
Rockefeller Suite K Building San Jose, California 95125 Empire State Pla;:a Albany, New York 12223 lion. Peter P. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq.
11. Lee Dennison lluilding Suffolk County Attorney Veterans Memorial liighway li. Lee Dennison Building flauppauge, Now York 11788 Veterana Memorial liighway llauppauge, New York 11788 Atomic Safety and Licenaing Appeal !!oard Atomic Safety and Licensing floard U.S. Nuclear Hegulatory Panel Comminnion U.S.
Nuclear Pegulatory Comminnlon Wanhington, D.C.
20555 Wanhington, D.C.
20535 Docketing and Service Section Jonathan D.
l'o l n be r g, I: n g.
Office of the Secretary Staff Counnel U.S.
Nuclear Hequiatory Comminuton New York State Public 1717 11 S
- rve t,
N.W.
Service Corminalon Washington, D.C.
20555
) Rockefeller Pla.ta Albany, New York lJJJi Dernard M.
Dordenick, 1:tul.
David A. Itepha, 1:3(.
Stuart Diamond I:;1 win J.
- Rein, I:a q.
Ilu a i nen a /l'i n a nc i a l l'. S. Nuclear Regulatory Comminnion New York Timen Wanhington, D.C.
2n555 229 W.
43rd Street New York, Naw York 10 01h Stewart M. Glaus, i:a q. #
1:leanor I,.
I'rucet, 1:nq.
Regional Counnel Atomic Safety and Licenain1 l'oderal 1:mergency Management floard Panel Agency U.S. Nuclear Hogulatory 26 l'ederal Plaza, Poom 1349 Comminnion Now York, New York 10278 Wanhington, D.C.
20555 1
9i
. Fabian Palomino, Eng. 4 Mr. Iloward A. Wilber
- Special C.o'isel t.o Atomic Safety and Liconning the Goeornor Appeal !!oard Executivo ChamL.>r. Porn 22)
U.S.
Nucioar llegulation State Capitol Comminnion Albany, New Yot A 1 :' /,' !
Wanhington, D.C.
205S5 Allen S. Ilosenthal, Chaitman
- Mr. Gary J. Edlos
- Atnic S.i
t / and L) conning Atomic Saf ety and I.icennin<l r
Appeal N trd Appeal licard (f. d. Nuclear hoquiate,ry U.S. Nuclear llogu14 tory Comm,9aton Comminaion Wa n h '. n g t er,
D.C.
20555 Wauhington, D.C.
205 %
V
- a M 31ae. G. MilTer a: f l4 K P ATit !C K, l OC Kil AltT, ll I I, L,
C!!# 1 STO Pill:ll 4 Pil! !.L I PS 1900 4 Strout, NW, Satte 1100 Washington, D.C.
200 %
Dated:
July 2t,,
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