ML20127A986
| ML20127A986 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/19/1985 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| CON-#285-606 OL, NUDOCS 8506210317 | |
| Download: ML20127A986 (35) | |
Text
_
ORIGINAL UNITED STATES OF AMERICA
(~s NUCLEAR REGULATORY COMMISSION tj s
In the matter of:
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 C
TELEPHONE CONFERENCE CALL t
Location: Bethesda, Maryland Date: Wednesday, June 19, 1985 Pages: 15,807-15,840 ANN RILEY & ASSOCIATES Court Reporters
-s 1625 I St., N.W.
(j Suite 921 kl Washington, D.C.
20006 (202) 293-3950 8506210317 850619 PDR ADOCK 05000322 T
1 UNITED STATES OF AMERICA 15,807
(
2 NUCLEAR REGULATORY COMMISSION 3
4
x 5
In the Matter of:
6 LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 7
(Shoreham Nuclear Power Station :
(Emergency Planning 8
Unit 1)
Procedure) 9
x 10 11 TELEPHONE CONFERENCE CALL 12
()
13 Room 407 14 4350 East-West Highway 15 Bethesda, Maryland 16 Wednesday, 19 June 1985 17 The telephone conference call in the above-entitled 18 matter was convened at 9:20 a.m.,
pursuant to notice before 19 MORTON B.
MARGULIES, Chairman.
20 APPEARANCES:
21 Board Members 22 23 MORTON B.
MARGULIES, Chairman l
l 24 DR. JERRY P.
KLINE, Member O
25 MR. FREDERICK J.
SHON, Member l
15,808 1
APPEARANCES (Continued)
O 2
On behalf of the Applicant:
3 DONALD P.
IEWIN, ESQ.
4 JAMES N. CHRISTMAN, ESQ.
5 Hunton and Williams 6
707 East Main Street 7
Richmond, Virginia 8
9 On behalf of Suffolk County:
10 MARTIN BRADLEY ASHARE,ESQ.
11 Suffolk County Attorney 12 H.
Lee Dennison Building 13 Veterans Memorial Highway 14 Hauppauge, New York 11788 1
15 and 16 MICHAEL S. MILLER, ESQ.
l 17 KARLA LETSCHE, ESQ.
18 HERB BROWN, ESQ.
19 Kirkpatrick & Lockhart 20 1900 M Street, N.W.
21 Suite 800 22 Washington, D.C.
20036 23 i ()
24 25
. = -.. - -.. -. - -. = _.
- ~..
15,809 1
On Behalf of the State of New York:
1 2
RICHARD J.
ZAHNLEUTER, ESQ.
r 3
MARY GUNDRUM, ESQ.
4 Special Counsel to the Governor 5
Executive Chamber 6
Room 299 i
7 State Capitol 8
Albany, New York 12224 9
i
- l 10 On Behalf of FEMA:
11 STEWART M. GLASS, ESQ.
l i.
l 12 Regional Counsel
!()
13 Federal Emergency Management Agency 14
'New York, New York 10278 15 16 On Behalf of the NRC Staff:
i l
17 BERNARD BORDENICK, ESQ.
I 18 office of the Executive Legal Director 19 Nuclear Regulatory Commission i
20 Washington, D. C.
20555 21 I
l 22 l
23 25
15,810 1
PROCEED INGS
![)
1 N-2 JUDGE MARGULIES:
Good morning.
This is Judge 3
Margulies.
As you all know, we have scheduled for June 25th, 4
the reopened hearing on Contention 24-0.
5 The Board understands there is an ongoing dispute as 6
to who represents the Intervenor, Suffolk County.
7 The purpose of this conference call is to determine 8
whether or not it is possible to proceed on Tuesday, 9
considering this factor.
We would like to determine what the 10 status of the dispute is among the various parties.
We are 11 not interested in hearing argument on the merits, but want to 12 know what the status is and whether it can be resolved in the
()
13 near term.
14 We will first hear from Mr. Ashare.
15 MR. ASHARE:
Yes, Judge Margulies.
16 The status of the litigation is as follows, Judge.
17 Executive Order issued by the County Executive -- (inaudible).
18 VOICES:
We can't hear.
19 MR. ASHARE:
Order of Judge Doyle -- (inaudible).
20 VOICES:
We cannot hear anything except a syllable 21 here and there.
22 MR. ASHARE:
Executive Order issued by County 23 Executive Mulholland on May 31st, invalidated by order ofJudge l -(~]
24 Doyle issued on last Monday.
V l
25 That order has been appealed -- (inaudible).
15,,811 l
1 VOICE:
We cannot hear anything.
4 2
Is there another party who knows the status, who i
3 maybe has a better connection?
4 VOICE:
I have a logistics suggestion.
If anybody 5
is on a speaker phone, maybe they should get off.
6 MR. ASHARE:
I am not on a speaker phone.
7' JUDGE MARGULIES:
Would you try again.
You seem to i
8 have sounded better the last time.
9 MR. ASHARE:
As loud as I can, I will try once more.
10 The Executive Order issued by the County Executive 11 on May 30th, 1985, was invalidated by order of Judge Doyle on 12 Monday last week.
That order has been appealed to the i
13 Appellate Division of the Supreme Court of the State of New t
14 York.
That appeal will be heard at 2 p.m. this afternoon.
15 When the Appellate Division will issue its opinion, 16 I cannot tell.
I may have a better idea after oral argument.
17 Appellate Division is an intermediate division of the 18 Appellate jurisdiction.
The highest level is the Court of i
-19 Appeals.
The next level -- (Inaudible).
l 20 Once again I anticipate the appellate process --
l i:
21 (Inaudible).
22
~ JUDGE MARGULIES:
The appellate process will what?
23 MR. ASHARE:
Be exhausted.
In other-words, we will
/ \\
24 have reached the last level of appellate jurisdiction, V
L 25 whichever way_it goes.
4 l
15,812 1
VOICE:
Within two weeks?
%/
2 MR. ASHARE:
Right.
3 There is a representation, either the pleading that 4
was submitted at the Supreme Court level, or the order of 5
Judge Doyle speaks to the question of who represents Suffolk 6
County.
The position of the County Executive is that the firm 7
of Kirkpatrick & Lockhart no longer represents the County 8
of Suffolk.
That is an ongoing issue.
9 (Inaudible).
10 JUDGE MARGULIES:
How do you expect to resolve that 11 issue?
12 MR. ASHARE:
By what means, or how is this going to
()
13 wind up?
By what means?
We are studying that right now, and 14 I am not prepared to address that question.
15 Obviously, steps are going to have to be taken to 16 solve this.
17 JUDGE'MARGULIES:
Does that complete your statement?
18 MR. ASHARE:
Yes.
4 19 JUDGE MARGULIES:
We would next wish to hear from 20 you, Mr. Brown, if you have anything different to offer.
21 MR. BROWN:
Let me just restate an answer to your
[
22 first question, because I couldn't hear Mr. Ashare.
23 I suspect we will be saying the same thing, but I 24 will give it to you from our perspective.
25 The Executive Order of the County Executive of May
15,813 1
30 was held null and void on June the 10th, I guess it was.
O 2
There was an appeal taken to the Appellate Division and the 3
argument on that will be today, this afternoon, in fact, at 4
2:00 o' clock.
And everyone seems to anticipata a very swift 5
decision by that body.
And presumably there will be an appeal 6
to the New York Court of Appeals as a result of that by some 7
parties.
8 We would anticipate a very swift decision there, 9
too, because this is a matter which has attracted a great deal 10 of attention, and I think the importance of it is recognized 11 by everyone involved.
I 12 As to the representation, there is a very legitimate
(
13 and serious conflict that exists.
By a letter dated the 3rd l
14 of June, the County Executive terminated our services, l
15 effective in 30 days, under the provision of the contract.
16 But the County Legislature, then, in a letter signed 17 by, I believe it was 14 members, asked us to ignore that; said '
18 it was an invalid termination.
19 Subsequently, the legislature did other things, 20 including making presentations -- a presentation before the i
21 Commission to that effect.
22 Other events have occurred which have created for i
23 us a conflict.
We, in the middle of that conflict decided it
[}
24 was important to determine what our ethical obligations are, V
25 under the Code of Professional Responsiblity, and other
15,814 l
1 pertinent principles that govern the conduct of counsel, and 2
we retained two law firms to give us independent advice.
3 One already -- I think you have received the opinion 4
of Messrs. Arnold & Porter, a Washington, D.C.
law firm, which 5
supported the initial research we had done, and a second 6
opinion which we received.
Both of which indicate, in this 7
situation where there is a conflict, the ethical obligation 8
rests upon us to represent the interests of the client, namely 9
the County, as opposed to those of the independent Executive 10 and to assure that the interests of the cilent, the County, 11 are not prejudiced.
12 At the same time we have taken upon ourselves an
()
13 obligation, which we have imposed to try to get a resolution 14 of this as quickly as possible for the interests of our 15 client, and needless to say, the interest of the proceeding 16 and the interest of this v.ery board to which we are officers.
1 l
17 And we would expect -- the matter has been raised to l
18 be heard by the Appellate Division this afternoon.
I cannot l
l 19 say that it will be heard this afternoon, though.
There is 20 going to be an issue and a dispute over whether it is 21 legitimately within the scope of the Appeal or not.
But, as 22 of this moment, none of us has a crystal ball.
23 It is possible the Appellate Division may resolve it 24 today.
If they don't resovie it today, then we intend to do l
25 whatever is necessary also to bring about an expeditious i
. _ -..=.
15,815 1
resolution in a competent forum, a proper forum.
I might 2
refer to
-- Judge Rosenthal yesterday made, we thought, a
3 very sound determination when he pointed out, at pages 2 and 3 4
of his Order, that he recognized the conflict and he stated, 5
at page 3:
6 "We will respect, however, a definitive resolution 7
of the existing disagreement by a competent authority prior to 8
" -- and he cited a date -
.which is critical for 9
the Appeal Board's purposes, because there is an argument 10 scheduled on that date."
11 And we certainly would expect a decision 12 substantially greatly in advance of the date which he has set
()
13 forth in his order.
14 JUDGE MARGULIES:
Would these decisions be final 15 decisions?
16 MR. BROWN:
I should think so.
I think it is in 17 everybody's interest, and certainly ours as counsel in-the 18 middle of this conflict, to get a definitive answer as i
19 promptly as possible.
20 So, nobody is going to sit by waiting for someone 21 else to act.
22 JUDGE MARGULIES:- The reason I ask is, I understand i
l 23 that the original litigation is based on a preliminary 24 injunction.
Would that have any effect in terms of the 25 finality of the decision that comes out of the Appellate i
15,816 1
Division?
)
2 MR. BROWN:
The issue before the Appellate Division 3
today is on the merits.
4 MR. ASHARE:
Mr. Brown is correct, that was a final 5
-- (Inaudible) -- not a determination.
The decision was based 6
on the merits by Judge Doyle and the Appellate Division will 7
hear the matter on the merits.
8 (Inaudible).
9 MR. BROWN:
I'm sorry, we couldn't hear any of 10 that.
Could someone repeat it, please.
11 MR. IRWIN:
This is Don Irwin.
I understood 12 Mr. Ashare to say that he agreed that there was a decision by
()
13 Judge Doyle on the merits, rather than on a preliminary 14 injunction.
15 I thought he said he was not sure as you were not, 16 Herb, whether the matters before the Appellate Division this 17 afternoon, fairly included the question of dismissal of 18 Kirkpatrick & Lockhart 'as a matter independent of the 19 legitimacy of Executive Order 1-1985.
20 MR. ASHARE:
That's correct.
21 JUDGE MARGULIES:
Do any of the other parties wish 22 to be heard on what we have discussed so far?
23 MR. ZAHNLEUTER:
This is Richard Zahnleuter fromteh r"
24 State of New York.
(%)
v 25 I can't add anything to the status of the dispute,
15,817 1
but I would agree that there is a legitimate conflict over who 2
represents the County, and it would be in the best interests 3
of all to postpone the hearing.
4 Although I also believe that the hearing should 5
never be held at all, because the Board has ruled that the 6
LILCO plan cannot and will not be implemented as required by 7
regulation.
I think that decision renders this contemplated 8
hearing moot.
9 MR. GLASS:
This is Stewart Glass.
The only problem 10 I have is the availability of the FEMA witnesses, which has 11 been an ongoing problem.
12 I did check with my witnesses to find out if they 13 had any availability -- a window in either July or August 14 where they would all be available.
And, unfortunately, next i
15 week is the only time they are available, on the date we 16 originally indicated. Though, I do agree that we would 17 probably be better off holding off on the hearing.
18 MR. IRWIN:
Judge Margulies, I suppose LILCO ought 19 to be heard on the question of whether or not to hold the 20 hearing next week.
21 LILCO, it seems to me is the party most likely to be 22 prejudiced either by double assault from whichever camp one 23 believes is the legitimate representative of Suffolk County,
! ()
24 or from delay from the proceedings.
25 For a number of reasons, including the difficulty in
= -
15,818 1
rescheduling the proceedings, LILCO is willing to live with O
2 the potential prejudice to it from having more lines of 3
questioning than it would otherwise have to endure.
And, in 4
the interest of getting the proceeding going and conducted and 5
completed on a schedule that has already been pretty difficult 6
for all the parties to agree on.
7 I note in passing despite the conflict that 8
everybody realizes has existed, nobody has made any kind of I
9 independent request for postponement of the hearing.
Although 10 that is not dispositive, I think it suggests everybody was-11 planning on going ahead.
12 We certainly have evaluated the risks and are
()
13 willing to take them.
4 14 JUDGE MARGULIES:
What are the views of the other 15 parties in terms of going ahead next week.
16 MR. GLASS:
FEMA would have no objection.
In that 17 regard LILCO has no objection.
The other parties -- I just i
18 can't see any other time that FEMA will be available.
It 19 really becomes a question for FEMA, that we are -- I hate to 20 take it this way, but either we are available next week on the 21 date that we originally promised, or otherwise we are looking 22 at the earliest somewhere in the third week of September, at 23 the earliest.
24 That appears to be the scheduling.
I did poll the 25 panel members and did ascertain the witnesses, before we got I
~.
15,819 1
on the phonecall, just couldn't find another date in July or 7-b 2
August.
They do have prior commitments at other plants and 3
other programs.
4 JUDGE MARGULIES:
How about Staff.
What is the 5
opinion of Staff 6
MR. BORDENICK:
This is Bernie Bordenick speaking.
7 The Staff is ready to proceed with the hearing.
8 With those counsel present, I would only suggest if 9
the Board decides to do that, while we have everyone on the 10 phone, we discuss scheduling for next week.
In other words, 11 try to get an estimate of cross examination time and for 12 planning purposes, what we are talking about in terms of time
)
13 required to finish the hearing.
14 But, we are ready to proceed.
15 MR. BROWN:
I have an entirely different 16 perspective, and I would 1ike our decision, if possible, that 17 the Board be driven by logic and sense and not by the fact 18 that FEMA has found that it can't put together the very people i
19 it wants on a schedule that is convenient.
i 20 For two years, everyone in this proceeding knows i
21 that FEMA's peculiarities and difficulties of getting people l
22 together, scheduling, have driven people to the wall i
23 periodically.
[~D 24 Right now any logical person, I think, would come to l
%-]
25 the conclusion that this is a bizarre situation in which to l
15,820 1
hold a hearing.
Everybody involved in it, I think, 2
desperately wants to get a resolution of this, and the 3
parties immediately involved, particularly us I can speak 4
for, are going to work towards a solution promptly.
5 I don't think it is advisable for the Board to 6
create an atmosphere which is contrary to orderly litigation 7
or something which, at least on paper, invokes thoughts of a 8
circus, of all kinds of potential problems, because the FEMA 9
is unable to do something which is incumbent upon it office, a
10 large agency.
11 All of us have gone to extraordinary inconvenience 12 repeatedly, and for FEMA just to announce that it can't be
(
13 here until the end of September, and therefore we ought to do 14 something which is bizarre and counterproductive, is hardly 15 reason, I think, for the Board to entertain FEMA's suggestion.
16 We would like a postponement of this.
We would like 17 it to be not long, but long enough to accommodate a solution 18 to a very peculiar situation, to say the least.
19 MR. ASHARE:
Assume that the government agencies --
20 (Inaudible).
21 MR. BROWN:
We can't hear anything.
22 MR. ASHARE:
I assume that the government agencies 23 are acting in good faith when they say they cannot --
24 (Inaudible).
}
25 In the interests of having decisions go forward,
15,821 1
under the terms of our contract --
2 JUDGE MARGULIES:
We can't hear you.
You are fading 3
out again.
4 MR. ASHARE:
Can anybody hear me?
5 MR. IRWIN:
I think I can hear about 90 percent of 6
what Mr. Ashare is saying.
7 MR. ASHARE:
What I am saying is, in the interests 8
of having this matter go forward, that I would agree with --
9 (Inaudible) -- anything with regard to the conflict that the 10 Kirkpatrick firm has as representatives of the County of 11 Suffolk, I would agree to go forward with Mr. Brown 12 participating, so that we can get this issue out of the way.
13 MR. IRWIN:
For anybody who didn't hear, Mr. Ashare 14 said in summary, that he would agree to go forward next week, 15 notwithstanding the conflict with both Mr. Ashare and 16 Mr. Brown, who are representatives of Kirkpatrick & Lockhart, I
17 participating.
18 LILCO is also willing to proceed on that basis.
It 19 is LILCO who is going to be prejudiced by the ability to 20 proceed, fundamentally.
The issues have not changed in 21 several weeks since the Board's order stating the hearing 22 terms came out.
Everybody knows what is there to be
.23
_ litigated, and the fact is that Mr. Ashare can make his 24 contribution; Mr. Brown and his colleagues can make their
(
25 contribution.
I
I 15,822 1
The record may be slightly longer than it would be 2
otherwise, but the issues have not changed.
And the 3
conflictin representation of the County does not affect that.
4 JUDGE MARGULIES:
Mr. Zahnleuter raised the 5
possibility that the issue itself may be moot.
6 Has anything occurred, or is anything expected to 7
occur, that would render the holding of the hearing on the 8
relocation issue moot?
9 MR. IRWIN:
I don't believe anything -- the 10 Licensing Board's decision does not in our view make the 11 question moot.
l There is a question of legal authority to implement 12 13 the plan.
That question is on appeal right now, and the 14 Licensing Board decision on that is certainly not 15 dispositive.
There is nothing different about conducting this 16 factfinding inquiry, than about conducting the myriad other 17 factfinding inquiries that have taken place to date.
18 There is just no reason not to proceed, in LILCO's 19 opinion.
20 JUDGE MARGULIES:
Does anyone else wish to be heard 21 on that question?
22 (No response) 23 I will now ask my colleagues as to what questions
()
24 they have.
25 JUDGE SHON:
I think we have covered everything I I
15,823 1
have written down here.
I have nothing further.
{~N 2
JUDGE KLINE:
I have nothing further.
3 JUDGE MARGULIES:
Do the parties wish to be heard 4
further on any matter?
5 MR. IRWIN:
I would just suggest that if we are 6
going forward, we would take Mr. Bordenick's suggestion into i
7 account and come back with a scheduling order, some sort of 8
procedures for carrying forward next week.
9 MR. ZAHNLEUTER:
This is Mr. Zahnleuter, State of 10 New York.
11 I think the situation is peculiar, and it presents 12 difficulties for me because in Mr. Bordenick's view, I should f)'\\
\\_
13 be required to disclose my estimates of cross-examination 14 time, et cetera, and it is a difficult situation to be in, i
15 because I understand LILCO will present a witness and I l
l 16 understand the County will present a witness, but I do not l
l l
17 understand who will be the attorneys representing the County's l
18 witnesses.
I don't understand who will proceed in the 19 cross-examination on behalf of the Intervenors, and I don't 20 understand who will cross-examine on behalf of Mr. Ashare, j
21 should he be present in the proceeding.
22 I think it emphasizes the point that it was a 23 legitimate conflict and to-postpone the hearing until it is 24 resolved.
25 MR. ASHARE:
Are we not present at the proceeding
15,824 1
now?
2 This is the County attorney.
3 Are we not present at the proceeding right now?
4 MR. IRWIN:
As far as LILCO is concerned, the County 5
has entered notice of appearance, and Mr. Ashare's name is on 6
it.
Mr. Brown has entered notice of appearing for his firm, l
7 and if LILCO is in double jeopardy, we are willing to be 8
assaulted from both sides.
9 As to Mr. Zahnleuter's other point about who is 10 going to be questioning whom, I don't think that is his l
11 present, that is Mr. Ashare's and Mr. Brown's problem.
The 12 subject matter is still the same.
Mr. Zahnleuter's questions 13 will presumably go to witnesses on their prefiled testimony, l
14 regardless of who is representing them.
15 MR. ZAHNLEUTER:
I would suggest that Mr. Ashare and j
16 Mr. Brown have a problem w'ith them.
We all have a problem.
17 For example, who will represent Chief Roberts?
18 MR. BROWN:
That's one of the practical problems I 19 was going to raise.
There is a County employee that's 20 certainly going to be consulted, whom Mr. Ashare will want to 21 consult with, possibly even testimony.
I can't predict l
22 exactly what is gcing to happen, but if there are two people 1
23
-who equivalently are seemingly pretenders to the crown of
()
24 representation, we are creating something which obviously is 25 extraordinary and not encouraged, and the reason it isn't is
I r
i l
15,EIS I
i-s 1
because it-frankly is bizarre.
We are opening up Pandora's i
i 2
box of a real~ ugly =ess, all in the name of acco==edaring an t
3 agency that is unwilling to ever bend itself three inches to t
4 help this proceeding go forward.
5 MR.. BROWN:
I a= not prepared on behalf of the 6
client whc= I represent, which we interpret to be Suffolk
[
7 County, to permit something so bizarre to happen without S
saying that we are ought-to sake as our focal point censon r
9 sense orderly procedure in the regulation.
l 12 We have never seen a procedure in which two parties i
?
l 11 stand up, with another party saying, "We are prepared to have 12 hoth of those speak to encourage conflicts and' disputes before i
I 13 the Board," unquestionably to create. positions where the Board 14 has to =ake decisions that it doesn't want to get into as to.
i a
15 perhaps a conflicting statement between both supposed s
16
- representatives of Suffolk County, when there is such a simple namely, postponing it.
17 solution that everyone would. adopt; i
IS And the only argument for n'ot doing it so far is the i
19 unwillingness of FEMA to bend itself one little bit to try to
[
l 23 acconsodate the public interest.
And I don't think that is a i
21
. reason to do something preposterous.
l-i 22 EMR. GLASS:
This is Stewart Glass, Regional Counsel r
l'
~
.23 for FEMA.
(
24 There have been times when IEMA has had to request a 25
_ postponement.
A number of those times had to do with the fact l
-,e,.
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w,
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.,a.-.o.
m.
-- e e.
~., - -
15,826 1
that we have been serving other nuclear power plants and doing
('_s\\
2 other issues for the NRC.
We cannot be in two places.
Our 3
agency has lost in the region over 10 percent of our people in 4
the last few months, and there is a possibility of a furlough 5
where people will not be working.
Even if they wanted to 6
volunteer their time, they would be prohibited by law to come 7
in.
So we have problems beyond our control.
8 Mr. Keller is committed to doing work.
He is a 9
contractor for us.
He is committed to doing work at a number 10 of nuclear power plants.
The man is on the road 80 percent of 11 his time, and he is appearing at either other hearings or 12 doing reviews at other nuclear power plants.
()
13 Mr. Baldwin is also involved as chairman.
So this 14 is not a whim we came by.
We told the people the problem in l
15 advance.
The last hearing was postponed because we were doing l
16 an exercise at another nuclear power plant, and I just resent 17 the characterization.
18 I understand the problem Mr. Brown has, but I think 19 FEMA has been more than cooperative in these matters.
FEMA 20 has bent over backwards and had people come out of sick beds 21 to attend the hearings so as not to postpone them.
22 So I just resent the characterization.
I understand 23 his problem.
I understand his concern.
(V)
24 MR. ASHARE:
This is Mr. Ashare, the County 25 attorney.
15,827 l
It is suggested by Mr. Brown that somehow the people 7-~
U 2
he represents and I represent are -- (Inaudible).
I don't 3
think that is necessarily true.
4 In that spirit, in an effort to try to cut through 5
all of this, and that is if Mr. Brown wants to handle 6
presentations of the witness and the cross-examination of the 7
witnesses, he may do so.
He will be physically present and 8
participate.
9 However, if he wants to handle the witnesses 10 (Inaudible) -- to the cross-examination.
What we would be 11 willing to do, in an effort to see this matter go forward, so 12 that the Board need not be burdened --
()
13 JUDGE MARGULIES:
What is the matter with that, 14 Mr. Brown?
15 MR. BROWN:
The main problem is I didn't hear any of 16 it, Judge Margulies.
17 MR. IRWIN:
Judge Margulies, this is Mr. Irwin.
18 Would you like me to repeat what I believe 19 Mr. Ashare said?
20 JUDGE MARGULIES:
Yes.
21 MR. IRWIN:
Mr. Ashare just agreed, Mr. Brown, to 22 let you handle the representation of the County's witnesses, 23 both in terms of their representation and their being 24 cross-examination, and to participate to the-extent you wish
(}
25 in cross-examination of other parties' witnesses.
,,y
15,828 1
MR. BROWN:
Is this to the exclusion of Mr. Ashare's
'd 2
presentation of the case?
3 MR. IRWIN:
He said he wishes to be present and to 4
participate, but that he will let you do the primary 5
representation of witnesses.
6 LILCO would certainly believe that Mr. Ashare should 7
not be excluded from having his voice in matters, but I do 8
believe if he is willing to let Mr. Brown handle the 9
representation of the witnesses, that certainly solves 10 Mr. Brown's dilemma.
11 MR. BROWN:
Our dilemma is one, Don and everyone on 12 the phone, of who is representing the client, not who is
()
13 handling a particular witness.
And it's more fundamental and 14 serious from our standpoint than just the cosmetic problem.
15 If Mr. Ashare is prepared to say for purposes of l
16 this trial the interests of Suffolk County will be represented 17 by our firm in accordance with the resolutions pursuant to 18 which the legislature has mandated, and we understand the 19 County has mandated we go forward and, indeed, everyone go 20 forward, because that's the County law, and he will not 21 interfere with that, we have no objection to him, of course, 22 being an observer at the trial.
23 But to the extent to which he reserves rights to
('
24 interject his views, his views necessarily are predicated upon
\\m-25 a differing interpretation of County law, which may be
15,829 1
resolved one way or another by the Appellate Division today
(, /\\
\\-
2 and may not.
It may go on through appeals or otherwise for 3
another week or so.
4 But the point'is, it's the interest of the client at 5
stake here.
The lawyers aren't the party in interest.
The 6
lawyers here are instruments of County law, and it's which one 7
is going to represent which laws.
8 There is a categorical difference between the 9
executive order and the principles of law it represents and 10 the County resolutions and the principles they represent.
11 Our representation would be according to the latter, 12 and Mr. Ashare's according to the former.
()
13 MR. ASHARE:
Judge Margulies, can I be heard on 14 that?
15 JUDGE MARGULIES:
Go ahead.
16 MR. ASHARE:
We are willing to agree to let the 17 hearings on June 25th proceed on the basis which I stated.
We 18 are not willing to concede the main point which Mr. Brown 19 wishes us -- I don't think (inaudible) people representation 20 problems of the County of Suffolk.
l 21 However, in the interest of permitting the 22 proceeding of June 25th to go forward, we are willing to allow 23 Mr. Brown to conduct the proceeding -- (inaudible).
24 JUDGE MARGULIES:
You have to repeat it.
You faded 25 out on the last two sentences.
15,830 1
MR. BROWN:
I heerd nothing, actually.
p_ \\
2 MR. IRWIN:
Again, this is Don Irwin, I seem to have 3
a better connection than ot.her people, and I hope Mr. Ashare 4
will correct me if I mischaracterize what he said.
5 What I believe Mr. Ashare said was that for purposes 6
of permitting the proceeding to go ahead, he was willing to 7
allow Mr. Brown or his colleagues to conduct whatever 8
examination they wished and to represent the witnesses being 9
sponsored by the County.
10 He did not wish himself to be relegated to the role 11 simply of an observer, and he believes that the question of 12 ultimate representation of the County's interest is a m()
13 different and severable question from the question of 14 proceeding on the trial and developing the factual record.
15 MR. BROWN:
There is a terrible misconception going 16 on here.
It is not one of Mr. Ashare being willing to let us, 17 as counsel, do something or my turning the tables and saying I 18 am willing to have him do something there.
It's not a matter 19 of the willingness of one of us who purports to be in a 20 superior position gratuitously permitting the other to do l
21 something.
22 The question is very fundamental.
The laws pursuant 23 tc which we are bound to go forward, and we believe we 24 continue to represent the interests of the County, are those 25 set forth in the resolution, all of which mandate that the
15,831 1
Shoreham Plant not be operated.
And the nature of what we
/
i 2
will cross-examine and what we will seek to do, and the 3
elements of proof that we will go forward with and this Board 4
will be confronted with are reasons that Shoreham should not 5
be permitted to operate and categorically why there are not 6
adequate relocation centers, reception centers and so on, that 7
we are going to develop a compelling record to that end.
That 8
is categorically contrary, I believe, to the interest now of 9
Mr. Ashare, who is not going to be comfortable with our making 10 that kind of record.
11 It is not a willingness of counsel to say I am 12 prepared, let hir say something, and I also want a chance to
('N q,)
13 say something.
14 The y 1 interest is the County.
Is the County 15 being ef fecti' esented?
That's the ethical quality 16 which has fr such difficulties here and caused us to 17 retain two
.irms and perhaps has also gotten seeking a resolution through his own 18 Mr. Ashar i
19 offices as id it is that interest of that client which 20 has to be pat.
it and it has to be paramount in the eyes and 21 the minds of the attorneys, and also the Board.
The client's 22 interests cannot be effectively represented in this hearing 23 with a situation where there are two law firms claiming 24 legitimately, pursuant to their own beliefs and good faith, 25 and pursuant to opinions of counsel, in our situation, that a
15,832 1
different approach be taken and, thus, the client will be 7--
V 2
rendered to be in a position of not being effectively 3
represented.
4 JUDGE MARGULIES:
Mr. Ashare, is it your intention 5
to cross-examine and participate in the examination of 6
witnesses?
7 MR. ASHARE:
We would want to leave that open, Judge 3
Margulies, but I do not believe that we would be 9
participating, no, directly.
We would be there in physical 10 presence, but for the purposes of permitting this proceeding 11 to go forward, I am willing to allow Mr. Brown (inaudible).
12 MR. BROWN:
This is a terrible cop-out we're talking f%
(,)
13 about and I want to show why.
s 14 The fact that counsel make agreement is not 15 satisfying to the ethical standards of the clients being 16 adequately represented.
We together, right now, could make an 17 agreement that for the purpose of expediting this trial, 18 neither one of us will show up and thus we could have this 19 Board go forward without.anyone representing the County, and 20 by definition the County would be ignored.
Its interest 21 wouldn't be represented, and yet everyone at this table could 22 walk away and say, "We worked out an accommodation."
That is 23 tantamount to what we are talking about here.
An agreement of
()
24 coansel which will render ineffective the ability of the 25 client, the interest of the client and the people of Suffolk
15,833 1
County, to have the representation to which they are entitled O
\\'
2 under law.
3 MR. IRWIN:
Let me put in my nickel's worth.
4 What I'm hearing is truly extraordinary, because I 5
have been in dozens of proceedings in my life where parties 6
have been consolidated against their will by administrative 7
bodies, by courts, forced to compromise and meld their views, 8
and nobody has ever held that as per se unconstitutional or 9
deprivation of due process or anything else.
10 Here we not only have -- we have just the opposite.
11 We have total freedom of speech.
We're probably going to have 12 the opportunity for development of a fuller and perhaps fairer
()
13 record than anybody could have ever dreamed of, with free play 14 for everybody in the world.
And Mr. Brown is basically 15 objecting to it on the ground that he thinks he has a monopoly 16 interest in representation of Suffolk County.
That is not the 17 case.
If anybody is going to be prejudiced by it, it's 18 LILCO.
It seems to me if LILCO's ox is being gored, LILCO is 19 willing to put up with it, that's darned near dispositive.
20 Furthermore, nobody is being prejudiced in their 21 right to argue later.
What is at issue here is the opinions 22 of experts on fact.
Presumably experts are not going to 23 change their testimony as experts, depending on who happens to
()*
24 be cross-examining them on a given day, or who happens to be
\\_
25 sitting at counsel table.
If they are, they are not my kind
15,834 1
of experts.
I just don't see any reason not to proceed.
)
2 MR. BROWN:
I would like to cut through this whole 3
thing and say that it is clear that the interest of LILCO is 4
to get this hearing finished, come what may.
To the extent to 5
which somehow Mr. Irwin is able to characterize what I am 6
referring to as extraordinary, and not recognize the situation 7
we have as extraordinary, but as something consistent with the 8
many proceedings he's been in, well, there are hundreds of 9
years of trial experience among all people here, and hundreds 10 among the members of the Board, and I dare say not one person 11 has ever seen some kind of situation that is equivalent or 12 even remotely similar to what we have here.
[V) 13 LILCO's interest is clearly now on the record.
They 14 want to get going.
The interest of the Board's decision, I
15 though, is protecting the rights of the client at stake here, i
16 the parties, the parties in interest who have properly 17 intervened.
j 18 There is a dispute between counsel, a dispute within l
19 the County, that is more fundamental than the dispute between 20 counsel.
We are just reflecting something that is going on in 21 the County, and the interests of that County are not going to 22 be represented effectively here unless 'chis is postponed and 23 we get a resolution.
24 The interest of LILCO, in talking about es s l
l 25 constitutional things and all kinds of red herrings, just l
l l
15,835 1
doesn't go to the fundamental simple question, should there be
\\-
2 a hearing at which a party cannot effectively be represented 3
when it and its citizenry will be hurt.
And the answer 4
clearly is no.
5 And the countervailing argument is that of FEMA 6
saying it can't get a couple of witnesses, and that's 7
unthinkable.
A government agency is able to work sometimes a 8
little bit harder than casually saying, "We can't come till 9
the end of September."
And it is an insult to all of us to 10 hear such a simplistic answer from Mr. Glass.
11 JUDGE MARGULIES:
At this time the Board would like 12 to go off the record and if you would hold on, we will confer r w) 13 amongst ourselves and come back.
(\\o/
14 Thank you.
15
[ Board conferring.]
16 JUDGE MARGULIES:
This is Judge Margulies again.
17 We are going back on the record.
Before we start, 18 for purposes of recordkeeping, there was one counsel that we 19 did not get the name -- it's a name that is unfamiliar to us.
20 It wasn't Irwin, Christman, Ashare, Letsche, Brown, Miller, 21 Bordenick, Glass, Gundrum or Zahnleuter.
Is there someone 22 else there?
23 Well, that covers everyone.
's 24 MR. BROWN:
I think that's the list, Judge.
{\\
25 JUDGE MARGULIES:
We thought there was scaeone
15,836 1
additional.
2 Before we make a ruling, we want to confirm with 3
Mr. Ashare that, number one, he does not plan to present any 4
witnesses.
Is that correct?
5 MR. ASHARE:
We will let Brown present the witnesses 6
for the County whose testimony has been prefiled.
That would 7
be Inspector Roberts, and -- (inaudible).
8 JUDGE MARGULIES:
It is our further understanding 9
you will not examine those witnesses?
10 MR. ASHARE:
Correct.
11 JUDGE MARGULIES:
With that understanding, we will 12 proceed with the hearing on June 25th.
, ()
13 MR. ASHARE:
Mr. Kelley from my office will be 14 present at the proceeding.
15 JUDGE MARGULIES:
The suggestion was made that we 16 prepare a schedule at this point, and that is what I would 17 like to do now, in terms of how we would go forward, and how l
18 much time we would expect to take in the presentation of i
19 witnesses.
l 20 MR. CHRISTMAN:
This is Jim Christman.
21 I think the understanding we had at the beginning of 22 this was that Inspector Roberts would be the first witness --
23 Elaine Robinson would be the first witness for LILCO.
The f'
24 FEMA witnesses would be the first order of business Wednesday C
25 morning.
15,837 es 1
To that extent, I think we have already laid out the
)
(V 2
outlines of it. We might start, of course, by asking how much 3
time people would want to have at Elaine.
That would tell us 4
how long we expect to go on the first day with our witness.
5 MR. MILLER:
Judge Margulies, this is Mike Miller.
6 There is absolutely no way at this time for us to 7
give an estimate as to the amount of time we are going to need 8
to cross-examine witnesses.
In light of everything else that 9
has been going on, and in light of the Board's ruling, I am 10 not even sure how the proceeding is. going to work, and I am 11 not in a position to give estimates of time, frankly, at this 12 point.
(
13 MR. CHRISTMAN:
Then I suggest we proceed with 14 Elaine Robinson, to be followed by the two County witnesses, 15 Radford and Roberts, interrupted as necessary on Wednesday 16 morning with FEMA witnesses, and we take up after the FEMA 17 witnesses are through with whoever is left.
Absent time 18 estimates from people, I don't know that we can go much 19 farther.
20 JUDGE MARGULIES:
Would there be any problem with 21 having those two County witnesses there on Tuesday?
22 MR. MILLER:
As far as I know, there is no problem, 23 but frankly we need to contact those people and talk with them 24 about it.
N_/
25 JUDGE MARGULIES:
Who just spoke at that point?
I'm
15,838 1
saying, who indicated there was a problem with the County?
2 MR. CHRISTMAN:
I think Mike Miller said there was 3
no problem, but he would have to check.
4 MR. MILLER:
That's correct.
5 JUDGE MARGULIES:
Is there anything further we can 6
plan beyond that?
7 MR. IRWIN:
I don't believe we can, unless the Board 8
wishes to have cross-examination plans submitted by the 9
parties, in which case it might be useful to set a date for 10 submission of them.
11 JUDGE MARGULIES:
We don't believe that 12 cross-examination plans would be necessary at this time.
()
13 MR. IRWIN:
Okay.
I guess one other thing that is 14 of interest to LILCO at this point is whether the Board has l
15 yet reached a ruling on the requested intervention of the 16 Nassau interventors?
17 JUDGE MARGULIES:
Yes, we have, and an order was 18 served June 14th, in which we denied the intervention.
19 MR. IRWIN:
Thank you.
We haven't received it yet.
20 JUDGE MARGULIES:
One other further thing.
This 21 Board is not appearing on the service list on a number of the 22 items that the Board has of interest, such as the 23 representation of the County, and we would appreciate it if i
rN 24 you would put us'on those service lists.
25 We don't have anything further.
Is there anything 1
15,839 1
further?
h
~#
2 MR. IRWIN:
No.
3 MR. BORDENICK:
Nothing from the Staff.
4 MR. GLASS:
Nothing for FEMA.
5 MR. BROWN:
We don't have anything.
6 JUDGE MARGULIES:
There being nothing further, the 7
reopened hearing will commence at 9:30 on Tuesday morning, 8
June 25th.
9 MR. BROWN:
Judge Margulies, is there a transcript 10 of this telephone conference call?
11 JUDGE MARGULIES:
Yes, there is a verbatim 12 transcript.
()
13 MR. BROWN:
If you could give us an idea when that 14 will be available.
15 JUDGE MARGULIES:
It will be ready to be sent out 16 tomorrow, and if anyone wants a copy, would they please tell 17 us and the reporter will take that down.
18 MR. ASHARE:
Ashare, the County of Suffolk.
We 19 would like a copy.
20 MR. BROWN:
This is Herbert Brown for the County of 21 Suffolk.
We would like a copy.
22 MR. IRWIN:
This is Mr. Irwin for LILCO.
We would d
23 like a copy.
24 MR. BORDENICK:
This is Mr. Bordenick of the Staff.
25 We would like a copy, r'
-...- ~
1 15,840 1
MR. ZAHNLEUTER:
And the State of New York would I
4 j
2 like a copy.
l d
4 3
JUDGE MARGULIES:
There being nothing further, the 4
4.
conference call is completed.
Thank you very much.
t 5
[Whereupon, at 10:10 a.m.,
the conference call was 6
completed.]
I 7
i 8
i j
9 10 l
11 f
12 l
13 i
f 14 15 i
i 16 17 18 19 20 21
-22 23 24 25
.a....-.
. -. -. -....-... -..-..---_.--..-.~_--.;,,,,-,.--.
i V
1 CERTIFICATE OF OFFICIAL REPORTER 2
S 4
5 This is to certify that the attached proceedings 6
before the United States Nuclear Regulatory Commission in the 7
matter of:
LONG ISLAND LIGHTING COMPANY e
9 Name of Proceeding:
Shoreham Nuclear Power Station, Unit 1 Telephone Conference Call 10 I
11 Docket No.
12 Place: Bethesda, Maryland 18 Date: Wednesday, June 19, 1985 l
l 14 15 were held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.
Is 3
../
/g g/ - -
(Signature) t, 39 (Typed Name of Reporter)
Mimie ' Mel-dzer 20 21 22 23 Ann Riley & Associates, Ltd.
24 25
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