ML20196A426
| ML20196A426 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/24/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#388-6771 OL-3, NUDOCS 8806300040 | |
| Download: ML20196A426 (37) | |
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UNITED STATES O NUCLEAR REGULATORY COMMISSION In the Matter of: )
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LONG ISLAND LIGHTING COMPANY ) Docket No.
(Shoreham Nuclear Power Station ) 50-322-OL-3 Unit 1) ) (Remand / Emergency Planning)
O LOCATION: Bethesda, Maryland PAGES: 20894 through 20928 DATE: June 24, 1988
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HERITAGE REPORTING CORPORATION OpidelReporters O m0 t se.e , s.w., sea. 6 Washinston, D.C. 20005 (202) 628-4888 E:SO6300040 880624 F' D R ADOCK 05000322 0 _ _ _ _ _ _ _ _ _ _ _ _ _
~h 20894 UNITED STATES NUCLEAR REGULATORY COMMISSION C1,n50TTL ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of: )
)
LONG ISLAND LIGHTING COMPANY )
(Shoreham Nuclear Power Station ) Docket No.
Unit 1) ) 50-322-OL-3
) (Remand / Emergency
) Planning)
TELECONFERENCE Friday, June 24, 1988 Room 427 4350 East West Highway Bethesda, Maryland The above-entitled matter came on for hearing, pursuant to notice, at 11:07 a.m.
BEFORE: HONORABLE JAMES P. GLEASON, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
() Washington, D.C. 20555 JUDGE FREDERICK SHON, Member Atomic Safety and Licensing Board U.S. Nuclear Regularory Commission Washington, D.C. 20555 JUDGE DR. JERRY KLINE, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i
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>4 20895 APPEARANCES:
(} On behalf of the NRC Staff:
MITZI YOUNG, ESQ.
LISA CLARK, ESQ.
Nuclear Regulatory Commission Washington, D.C. 20555 On behalf of Lono Island Lichtino Company:
DONALD P. IRWIN, ESQ.
K. DENNIS SISK, ESQ.
JAMES N. CHRISTMAN, ESQ.
Hunton and Williams 707 East Main Street, P.O. Box 1535 Richmond, Virginia 23212 on behalf of Suffolk County:
HERBERT H. BROWN, ESQ.
KARLA J. LETSCHE, ESQ.
Kirkpatrick and Lockhart South Lobby - 9th Floor 1800 M Street, N.W.
Washington, D.C. 20036 On behalf of New York State:
RICHARD ZAHNLEUTER, ESQ.
Deputy Special Counsel to the Governor Executive Chambers Capital, Room 229 Albany, New York On behalf of FEMA:
WILLIAM R. CUMMING, ESQ.
Federal Emergency Management Agency Washington, D.C. 20972 l
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20896 1 PROCEEDINGS
{} 2 JUDGE GLEASON: Would the. parties notice your attendance for the record, please. And let's do it in the 3
4 usual order with the Applicant, the staff, FEMA, and then 5 Suffolk County and New York State in that order, please.
6 MR. IRWIN: Judge Gleason and members of the Board, 7 This is Donald Irwin of Hunton and Williams for Long Island 8 Lighting Company.
9 With me is James Christman, as I informed Ms. Kerr 11 0 this morning. My partner Dennis Sisk is unavoidably in a 11 Federal Court hearing in New York City this morning and cannot 12 be here.
13 MS. YOUNG: Good morning, this is Mitzi Young with 14 the NRC staff. Also with me is Lisa Clark.
MR. CUMMING: This is William R. Cumming, counsel for
( ) 15 16 FEMA.
17 MR. BROWN: Herbert H. Brown of the firm of 18 Mirkpatrick and Lockhart for Suffolk County. I'm accompanied 19 by Karla J. Letsche of the same firm.
20 Judge Gleason, the principal counsel for Suffolk 21 County will be Ms. Leteche. (ph) 22 JUDGE GLEASON: All right.
23 MR. ZAHNLEUTER: Richard Zahnleuter representing the 24 Governor of the State of New York and the State of New York.
25 JUDGE GLEASON: All right, gentlemen. The telephone Heritage Reporting Corporation
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20897 1 conference has been called in connection with the request for 2 Mr. Irwin for the Applicant concerning the continued, I guess,
(}
3 impasse in the discovery schedule in requesting a new schedule.
4 I don't know how you want to proceed. Do you want to 5 say some things first, Mr. Irwin? And then we'll go to the 6 interveners and proceed in that way.
7 I might say beforehand that Mr. Irwin called this 8 morning, and on the basis of Mr. Sisk's unavailability until 9 this afternoon asked if there's a possibility of postponing 10 this conference.
11 And I told him that probably the board is going to 12 reconvene the parties with another conference this afternoon 13 around 3 o' clock so that we can announce whatever decision we 14 have to make.
( ) 15 And at that time if Mr. Sisk is available and has 16 something additional to add to the situation we'll give him a 17 few minutes to talk and other parties can respond if they care 18 to. And we would handle it in that way.
19 So please proceed, Mr. Irwin.
20 MR. IRWIN: Thank you, Judge Gleason.
21 I asked for this conference simply because l
l 22 notwithstanding repeated orders by the Board -- it was blown so
! 23 far at the issuance of subpoenas -- LILCO has been entirely 24 boarded in obtaining the discovery which it would need in order l 25 to develop its case on the realism /best effort issues should i
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20898 ,
1 those issues ever have to be tried.
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We well remember where we started out on this issue two or three months ago. LILCO was starting to try to develop 4 its discovery in an orderly way.
5 Interveners boarded that discovery by a number of 6 means which are all matters of record. It was brought 7 initially to an impasse on June 10th when the Board asked the 8 Interveners point blank whether they intended to comply with 9 then outstanding discovery orders; gave them an opportunity to 10 purge themselves of any disobedience.
11 They just were disinclined to purge themselves. The 12 Board then announced preliminary intention. The Board also 13 gave them a second opportunity to purge themselves in writing 14 on June 15th.
They did not avail themselves of that opportunity but
( ) 15 16 merely issued a boilerplate short recitation of their opinion.
17 The Board issued another opportunity to purge themselves to 18 Interveners on June 17th, and yet another conference call.
19 They again disclaimed the offer to purge themselves.
20 LILCO at that point received renewed orders from the 21 Board to take depositions on a specified schedule. Interveners 22 refused to provide their witnesses.
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23 LILCO also sought and obtained subpoenas for two 24 witnesses who, without notice from LILCO, had retired from 25 Suffolk County's employment.
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20899 1 Interveners refused to obey those subpvenas; allowed
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their for.mer employees not to appear, and only at the last minuta filed motions to quash.
4 They have since then filed two motions, one a motion 5 to vacate, and the other a motion for staying. We believe that 6 both of those motions are essentially billetory [ph) in nature 7 and not that it's meritorious, but we'll be happy to deal with 8 the merits of that.
9 What we have here is a situation that I am just at a 10 loss to characterize in any other fashion other than as studied 11 disregard of the legitimate authority of this Board.
12 And there comes a point when people have to either 13 put up or shut up. And I think that we're very close to that 14 point this morning.
- ( ) 15 If Interveners are not prepared to purge themselves 16 promptly of their disobedience to this Board I think that the
! 17 only pseudo-remedy is to dismiss them from this proceeding.
18 That's basically what our position is, Judge Gleason.
19 JUDGE GLEASON: All right. Ms. Letsche?
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20 MS. LETSCHE: Yes, Judge Gleason. I 21 I think the position of the government is well laid 22 out in the motions that we have filed -- the motions to vacate 23 the June 17th order, and the motion for a stay of the June 17th l
24 order.
25 I have one direct response to Mr. Irvin's statement a l
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20900 1 minute ago. And that is the premise that he began with which
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is that LILCO has been thwarted an effort to obtain discovery on the realism issue is indicative of just the flaw in this 4 entiro integrity of the proceeding that we are in right now.
5 This Board has disclosed of those realism issues and 6 decided to rule for LILCO on the merits of those issues. The 7 merits of those realism issues are therefore no longer in 8 question and LILCO's interest in obtaining discovery concerning 9 those issues is simply moot.
10 In addition, as a result of the Board, are 11 impositions of sanctions on the government -- that is the 12 disposal of the government's realism contentions.
13 This Board has simply lost jurisdiction over those 14 realism issues, including an effort to investigate the
() 15 potential compromise of the integrity of the NRC's rules in 16 connection with discovery on those contentions.
17 And the Lemmock case which we sighted in our motion 18 to vacate the Board's order is dispositive of that issue.
19 LILCO's desire to depose 16 or 17 county and state officials 20 does not address these simple jurisdictional questions which 21 prohibits this Board from going forward.
22 And I think wo made that point pretty clearly in what 23 we filed. In addition, with respect to the question of whether 24 or not the 'vernment has chosen -- to use Mr. Irwin's terms --
25 purge themselves of the alleged violation of the Board's Heritage Reporting Corporation
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20901 1 orders. 1
(~} 2 We have pursued our legal right in seeking this
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3 board's vacation of its order, and in seeking a stay of that 4 order so that we may get a pilot review of the order should the 5 board decide not to vacate it.
6 And I think it just ignores the fact that we do have 7 legal rights and substantial legal issues here presented by the 8 board's order to which we are entitled to review.
9 And the question is of purging, or of coming forward 10 and complying with in order which the government's belief is 11 contrary to law for several stated reasons.
12 It is just not true. We're entitled to have those 13 things decided before we are faced with a decision of whether 14 or not to come forward.
And I have one other point to make. And that is, we
( ) 15 16 feel -- we believe that the Board lost jurisdiction, as we 17 said.
18 We believe the Board has stated no basis for pursuing 19 this inquiry upon which it has embarked. In addition, however, 20 we have made clear that even if there were to be jurisdiction 21 that the procedures that the Board has chosen to adopt to 22 pursue this integrity of the proceeding issue are clearly 23 erroneous.
24 And if the Board were to adopt appropriate procedures 25 the county and state would be willing to, in order to put all Heritage Reporting Corporation
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, 20902 1 these allegations behind us, and put this whole matter at rest,
{} 2 3
we would be willing to produce for the Board's inquiry -- not for our depositions conducted out of the Board's presence by 4 LILCO.
5 But for the Board's inquiry we would produce the 6 appropriate people who were involved in the production of the 7 county operation's plan which is at issue here back in 1982 and 8 1983, and again in 1988, and in addition in response to the 9 affidavit of counsel which LILCO served late last night upon 10 us.
11 We would provide an equivalent affidavit from counsel 12 here that were involved in that document production along the 13 same lines setting forth what hour or understanding of the 14 facts was.
( ) 15 So I don't think it's fair to say that county has --
16 and the state can speak for itself -- but that the government 17 has not been forthcoming, and that we have refused to do all 18 sorts of things when in fact we are merely pursuing our right 19 to have proper and appropriate procedures followed here.
20 And we are entitled to do that.
21 JUDGE GLEASON: All right. Ms. --
l 22 MS. LETSCHE: Excuse me, Judge Gleason, I have ona l
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23 other point I want to raise. It is a follow-up to one of the 24 things I just said in connection with the procedures the Board l
25 has adopted in its June 17th order.
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20903 1 It's basically appointing LILCO as a private 2 prosecutor in determining whether or not the NRC's rules have
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3 been somehow compromised.
4 I'd like to direct the board's attention to a recent 5 Supreme Court case. It is entitled Young v. The United States.
6 The citation is 107 Supreme Court 2124. It is a 1987 case.
7 And that case was dealt with contempt procedures in a 8 criminal context. Nonetheless it addressed the issue of the 9 appointment as a private prosecutor of a party that is a 10 beneficiary of a court order in order to determine whether a 11 court order has not been complied with.
12 And the Supreme Court clearly held that counsel for 13 a party that is the beneficiary of a court order -- and I'm 14 quoting here -- may not be appointed as prosecutor in a
( ) 15 contempt action alleging a violation of that order.
16 And the Court discusses at length policy reasons why 17 such appointment is improper, and it fully supports the 18 position that the government stated in their motion to vacate 19 your order.
l 20 JUDGE GLEASON: That involved a criminal proceeding?
i 21 MS. LETSCHE: It did.
l 22 JUDGE GLEASON: All right. Thank you, Ms. Letsche.
23 I want to get back to some of your comments in a few minutes.
24 But, Mr. Zahnleuter?
l 25 MR. ZAHNLEUTER: Yes, Judge Gleason.
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20904 1 The state relies on its June 20th filing. And I have
{} 2 nothing further to add to what Ms. Letsche has just stated.
3 JUDGE GLEASON: Okay. Fine. I also picked up that l I
4 comment of Mr. Irwin's that you refer to, Ms. Letsche, about 5 the discovery relating to the realism issues.
6 And I'm not sure that I understood precisely what he 7 meant by that but we'll get back to it in a minute. But just 8 so there is no misunderstanding as far as the Board's view is 9 concerned, the discovery that we have considered and have 10 authorized relates to the production of emergency plans and 11 whether they should have been produced earlier, and relates 12 also to the sanctions which the Board will impose when it 13 resolves that issue.
14 And that brings me to making some statement here
()15 which I -- I think that there is some misunderstanding on the 16 part of the Interveners, and I want to clear it up if thero is 17 such.
18 It did sound to me like you were suggesting a new 19 proposal, Ms. Letsche, which I'd like to get back to also in a 20 minute.
21 And I hesitate to make this statement in one sense 22 because we have not heard from the staff yet with respect to 23 either the motion to vacate or the motion to stay but 24 irrespective of that our views on the issue would be the same.
25 We do not -- the Board does not consider that it has Heritage Reporting Corporation
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20905 1 lost jurisdictior.of the issue that is corrently in litigation.
(} 2 We have announced on two occasions, I believe, that there will 3 be no further litigation with respect to the realism 4 contentions.
5 But the extent, or the compass if you will, as to how 6 those contentions will be handled, what the nature of the 7 sanctions will be, is precisely the area in which this 8 discovery will relate to -- it should relate to -- and has as 9 its purpose, and is directed to.
10 In that connection we at least currently are of the 11 opinion that your motions to vacate and motions to stay are 12 premature, and they are not timely.
13 But as I say, we won't make any final judgement with 14 respect to that until we hear from the staff and what their
( ) 15 views are.
16 Can I get back for a minute, Ms. Letsche, with 17 respect to what I really interpreted to be a kind of a new 18 proposal and get you to flush that out if you can a little bit.
19 You indicated, I believe, that you would not be 20 adverse to permitting the Board to proceed with questioning 21 certain witnesses with regard to the production or 22 nonproduction of these emergency plans.
23 Could you elaborate on that a bit?
24 MS. LETSCHE: Yes. First making clear that we don't 25 wave our position that the Board does in fact lack jurisdiction Heritage Reporting Corporation
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20906 1 on the basis for the inquiry.
('s 2 JUDGE GLEASON: I understand.
U 3 MS. LETSCHE: Setting that aside, the government 4 would be willing, in order to get this thing over with, this 5 issue behind us, to produce at a hearing conducted by the 6 Board, here in Bethesda if the Board wishes, Mr. Frank Jones, 7 Mr. John Bilello, Mr. Richard Jones, and Mr. Frank Petrone who 8 are the past and present Suffolk County employees who had the 9 primary involvement in the document production which is the 10 issue here.
11 And I believe that Mr. Zahnleuter, who can speak for 12 himself, would also produce Mr. DeVito, who is the New York 13 State employee in a similar position with respect to the 1988 14 production since the state was not in the proceeding in the
( ) 15 '82-83 time period.
16 And if the Board desires we would also provide an 17 affidavit of counsel --
18 JUDGE GLEASON: How about --
19 MS. LETSCHE: -- in order to make the chain of 20 custody complete, setting forth the facts as the county can 21 best state them concerning the production of this county 22 operation plant.
l 23 And we would be willing to do that because it would 24 take away the impropriety involved in the Board's decision to 25 permit LILCO who should be questioned, and to in fact conduct Heritage Reporting Corporation
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20907 1 the questioning when the issue -- the matter at issue is
{} 2 whether or not the Board order or the integrity of the NRC's 3 proceedings have been compromised.
4 So if the Board were to conduct the questioning we 5 would produce those individuals who are the appropriate people 6 in our opinion to answer questions.
7 C?,early if that question -- we believe that that 8 questioning is going to put the matter at rest, and that it 9 will be over, and the Board will have the facts, and there is 10 absolutely no need at all to interrogate all these other 11 miscellaneous people who do not have information pertinent to 12 the issue raised by the Board.
13 JUDGE GLEASON: Ms. Letsche, what about -- I should, 14 I guess, ask Mr. Zahnleuter this. What about Dr. Axelrod?
( ) 15 MR. ZAHNLEUTER: Well, Mr. DeVito is the director --
16 this is Richard Zahnleuter by the way. Mr. DeVito is the 17 Director of the State Emergency Management Organization. And 18 it is his agency which has jurisdiction over areas such as 19 nuclear attack planning which is what this county operation 20 plan pertains to.
21 Dr. Axelrod is the Chairman of the Disaster 22 Preparedness Commission. He's actually the Commissioner of the 23 Department of Health.
24 And it is Mr. DeVito who has more direct knowledge 25 about this particular area involving the county operations Heritage Reporting Corporation
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20908 1 plan.
(} 2 3
So I think it would be much more useful for this purpose of the integrity of the proceeding issue to make Mr.
4 DeVito available to the Board for the Board's questions.
5 JUDGE GLEASON: All right. I think, Ms. Young, we 6 ought tc hear from you. And then we'll discuss this thing 7 further at that time or after you get through.
8 MS. YOUNG: Yes, Judge Gleason. The staff has 9 initially had questions whether the Board had actual).y 10 determined what sanctions it would impose on Interveners.
11 That question would be whether the Board's ruling is 12 final to the extent that it should be appealed and whether the 13 Board had determined that it was dismissing the realism 14 contention, but that any jurisdiction regarding those
( ) 15 contentions would have passed with the notice of appeal filed 16 by Interveners.
17 Not being able to resolve that question, but assuming 18 for the moment that such an order had been taken by the Board, l 19 the staff does not agree with Interveners that the Board has no l
20 jurisdiction to determine what further sanctions might be i 21 appropriate in light of its disposition of the realism 1
22 contention.
23 The staff is of the opinion that depositions are a 24 procedure to determine information regarding whether parties 25 have fulfilled their obligations and NRC proceedings would be Heritage Reporting Corporation
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20909 1 within the Bocrd's jurisdiction to request.
2 But the staff has not been able to complete the
(~)3 3 research necessary to come to an ultimate position on that in 4 light of the various filings that have happened over the past 5 few days.
6 So with respect to Intervoners' assertion that LILCO 7 is being vested with improper prosecutorial status, the staff 8 can offer no opinion on that, and would save that till its 9 written filing next week.
10 But overall, the staff has not come to another 11 position over the motion to vacate, the motion to quash, or the 12 propriety of the procedure authorized by the Board, 13 particularly since it has not reconciled whether this Board has 14 determined what sanctiona it will impose.
( ) 15 Thank you.
16 JUDGE GLEASON: All right. Thank you, Ms. Young.
17 MR. IRWIN: Judge Gleason, thi, is Mr. Irwin.
18 JUDGE GLEASON: Yes?
19 MR. IRWIN: May I be heard briefly with respect to 20 Ms. Letsche's proposal?
21 JUDGE GLEASON: Well, let me hear if Mr. Cumming 22 wants to get in this raucous at all. Mr. Cumming?
23 MR. CUMMING: No, Judge Gleason. I do not.
24 JUDGE GLEASON: Okay.
25 All right, Mr. Irwin. I was going to turn to you Heritage Reporting Corporation
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20910 1 next anyway.
(~') 2 MR. CUMMING: Judge Gleason, there is one important v
3 thing for you to note, though. l l
4 JUDGE GLEASON: Is this Mr. Irwin?
5 MR. CUMMING: Mr. Cumming.
6 JUDGE GLEASON: Oh, Mr. Cumming. Go ahead.
7 MR. CUMMING: And we do have some concerns with 8 respect to the state because under our civil defense act the 9 state is an umbrella organization. We look to determine the 10 adequacy of local plans, and whether or not comprehensive local 11 plans are prepared and maintained. And the state certified the 12 FEMA on an annual basis with respect to those plans.
13 So we're following with some interest from that 14 regard.
( ) 15 JUDGE GLEASON: All right. Thank you, Mr. Cumming.
16 All right, Mr. Irwin.
17 MR. IRWIN: Thank you, Judge Gleason. I think what 18 Mr. Cumming just stated illustrates LILCO's concern about Ms.
19 Letsche's proposal this morning.
20 It's obviously a new proposal. I guess both of those 21 views can be summarized in two fashions.
22 First of all, LILCO is not a prosecutor. This is a 23 civil proceeding not a criminal proceeding. Secondly, LILCO is 24 a party very much in interest and has been, I believe, sorely 25 damaged by the failure of both the county and the state to be Heritage Reporting Corporation
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4 20911 1 more forthcoming over not just this one document but a series
,' 2 of documents and positions they have taken over the past
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3 several years.
4 Our response to the motion to vacate illustrates not 5 just the difficulties with the operations plan, but other 6 positions more recently taken by the state in adjusting the 7 existence or nonexistence of state policies with respect to 8 forum, as distinguished from other plants.
9 Secondly, the witnesses proposed by Suffolk County 10 and New York State would obviously be of their choice. And the 11 suggestion of Mr. DeVito is a perfect example.
12 Mr. DeVito is presently the head of the agency with 13 resronsibility. But he was not head in 1982 or ' 83.
14 Dr. Axelrod was there, but so was Dr. Davidoff. Mr.
( ) 15 Davidoff was intimately revolved in the state's review of 16 LILCO's plan in 1982. He was an affiant in litigation on the 17 side of LILCO favoring the approval of that plan in the fall of 18 1982.
19 He was very much at the core of the state policy made 20 for LILCO. (ph] But LILCO does not know for sure. My whole 21 concern is that for LILCO to have to take a bleacher seat while 22 the state and county serve up their own chosen witnesses who 23 for inquiry by the Board is a deprivation of LILCO's right in 24 this matter.
25 LILCO deserves and is planning to take an active role Heritage Reporting Corporation
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20912 1 in whatever further inquiry takes place. We believe that would
{} 2 extend to discovery as well as participation in any hearing.
3 MS. LETSCHE: Judge Gleason, if I may just respond to 4 one of these matters that Mr. Irwin raised, directly to two of 5 them.
6 JUDGE GLEASON: Go ahead.
7 MS. LETSCHE: First of all, the very fact of LILCO's 8 very vested interest in this -- and not just this but other 9 proceedings in which there is great antagonism between LILCO 10 and the government -- makes it tocally inapprnpriate for the 11 Board to appoint LILCO to conduct this inquiry.
12 The point of which is whether or not this Board's ;
13 orders have been complied with, and whether or not the 14 integrity of this agency's processes have been compromised.
( ) 15 LILCO does have a very strong interest in that. And 16 as a result it is grossly prejudicial to the government's 17 interest to permit that interested party to decide who it is 18 that should be questioned, and to conduct the questioning.
19 If the true purpose of this proceeding is to find out 20 what happened in 1982 and ' 83 and in 1988 in connection with 21 document production then the Board can ask those questions of 22 the people.
23 If it comes out upon questioning the people that the 24 government would produce this Board's questioning, it is 25 necessary to call someons else and the Board makes that Heritage Reporting Corporation
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20913 1 determination, then we can deal with that. But that is the
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appropriate way for this Board to conduct an inquiry about violation of its order.
4 The other point I want to make is that this is not a 5 wholly new proposal. This was referenced in our motion to 6 vacate in a footnote.
7 We said that if the Board were to rule -- these 8 weren't the words used -- but basically, if the Board were to 9 rule that it does have jurisdiction with which we disagree, the 10 appropriate way to conduct this proceeding would be by the 11 production of those individuals. And that was in our motion to 12 vacate in footnote 10, on Page 12.
13 JUDGE GLEASON: All right. Thank you, Ms. Letsche.
14 The Board is -- we're going to push the mute button here, and
( ) 15 the Board discuss this matter for a minute. Thank you.
16 MS. YOUNG: Judge Gleason?
17 JUDGE GLEASON: Yes.
18 MS. YOUNG: This is Ms. Young. I recollect that I 19 neglected to respond to one of the proposals by LILCO that's l 20 currently on the table.
21 Apparently LILCO had asked that sanctions more severe 22 than those previously contemplated by the Board should be 23 imposed in light of the past week, the refusal of Interveners l
24 to make deponents available to respond to interrogatories and t 25 to file pleadings which LILCO believes lacks merit.
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F0914 1 The staff does not agree with LILCO on that point.
2 It would agree more with Interveners, save for one exception.
{JT 3 Staff believes that Interveners have been pursuing appropriate 4 legal remedies to evidence in a disagreement with Board orders, 5 and has been timely in most respects, except for filing their 6 motion to quash the subpoenas on the eve of the date that those 7 individual subpoenas were supposed to be made available.
8 That's my comment.
9 JUDGE GLEASON: Thank you, Ms. Young.
10 We'll go mute for a while here. We'll be back within 11 a few minutes.
12 (Off the record.)
13 (Back on the record.)
14 JUDGE GLEASON: All right. This is Judge Gleason
( ) 15 again. Is everybody there that should be there?
16 MR. IRWIN: Judge Gleason, this is Mr. Irwin. I have 17 one or two things I would like to say before the Board le terminates the call.
19 JUDGE GLEASON: Let's make sure everybody else is 20 there, please.
21 MS. YOUNG: Mitzi Young for the staff.
22 MR. CUMMING: Bill Cumming here for FEMA.
23 MS. LETSCHE: This is Ms. Letsche for Suffolk County.
24 MR. ZAHNLEUTER: Richard Zahnleuter.
25 JUDGE GLEASON: All right, Mr. Irwin.
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.s 20915 1 MR. IRWIN: Thank you, Judge Gleason. I have two
(} 2 _ matters to raise inlefly. One is LILCO has had a chance to 3 take a look at this Supreme Court case that Ms. Letsche cited 4 As the Board picked up this is a criminal case, not a 5 civil case. And the Court's language toward the end of the 6 opinion. ?nd one of these sentences of which I would like to 7 read illustrates that there's a significant difference between 8 that context and this.
9 I'm quoting from Page 2141 of 107 Supreme Court. It 10 reads as follows. "Between the private life of a citizen and 11 the public blare of criminal accusations stands the prosecutor.
12 That state official has the power to employ the full machinery 13 of the state, scrutinizing any individual.
14 "Even if the criminal is ultimately acquitted, forced
( ) 15 emersion in criminal investigation and adjudication, the 16 wrenching disruption of everyday life." It goes en from there 17 in a similar vain.
18 That's not what we're involved in here by any means.
19 It's a civil proceeding, and that's the distinction.
20 Second, however, LILCO is fundamentally in pursuit of 21 a license. If a supplementary proceeding takes off on a life 22 of its own, LILCO has no interest in it to the extent that it 23 distracts from the pursuit of that light.
24 And LILCO wishes to be of aid to the Board in any way 25 it can be. LILCO has information assembled over the last six Heritage Reporting Corporation
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4 20916 1 years which it believes to be very helpful to delving into the
/~T 2 entire set of matters which have been raised by the
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3 nondisclosure of the emergency plan and other matter.
4 LILCO does not want -- doesn't believe this Board 5 should allow itself to be sidetracked from the ultimate 6 fundamental purpose of that of a prompt and fair, speedy 7 adjudication of the merits of the few issues remaining before 8 it.
9 Thank you.
10 JUDGE GLEASON: All right. Does anybody else have 11 anything they want to add?
12 Essentially what we're going to do is to recess the 13 oral telephone conference till this afternoon, as we indicated 14 before. We'd like to consider this matter a little bit more in
( ) 15 the matters that people have raised.
16 And so --
17 MS. LETSCHE: Judge Gleason, this is Ms. Letsche.
18 I have one point I'd like to raise. If you' re going 19 to be considering the matters that have been raised in this 20 conference call over .his recess period, I'm not going to quote 21 anymore from the Supreme Court case but I would like to direct 22 your attention particularly to Pages 2135 to 2138.
23 That is where the discussion which is pertinent to 24 this case is. And I think the Board will find that despite the 25 criminal overtones that are in fact present in that case that Heritage Reporting Corporation
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e 20917 1 the policy questions that are discussed there are directly
[} 2 apropos here, and should govern the Board's action.
Anything else from 3 JUDGE GLEASON: Thank you.
4 anyone?
5 (No response) 6 JUDGE GLEASON: All right. We'll see you all at 3 7 o' clock. Thank you.
8 (Whereupon, at 11:45 a.m., the hearing was recessed, 9 to reconvene at 3:00 p.m.)
10
~
11 12 13 14
( ) 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation
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4 20918 1 AFTERNOON PROCEEDINGS 2 JUDGE GLEASON: This is Judge Gleason back again.
3 And I guess just to make sure, we'd better go through 4 the routine again and acknowledge yourselves for the record.
5 So start with the Interveners again -- I mean with the 6 Applicant, I'm sorry.
7 MR. IRWIN: Judge Gleason, this is Mr. Irwin for 8 Long laland Lighting Company. Mr. Christman is with me. Mr.
9 Sisk, who was in court this morning has joined us in our New 10 York office.
11 JUDGE GLEASON: Mr. Sisk?
12 MR. SISK: Yes.
13 JUDGE GLEASON: All right. Go ahead with the staff, 14 please.
Also
( ) 15 MS. YOUNG: This is Ms. Young, the NRC staff.
16 with me is Ms. Clark.
17 MR. CUMMING: William R. Cumming, counsel for FEMA.
18 MS. LETSCHE: This is Karla Letsche representing 19 Suffolk County, and with me is Herbert Brown.
20 MR. ZAHNLEUTER: This is Richard Zahnleuter 21 representing the Governor of the state of New York and New York 22 state.
23 JUDGE GLEASON: All right. Thank you. We're 24 reconvening --
25 (Technical difficulty.)
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20919 1 JUDGE GLEASON: Just hold on a minute till this buzz 2 tires out here.
{
3 (Pause) 4 JUDGE GLEASON: We're reconvening our recessed oral 5 telephone conference from this morning. And before the Board 6 announces some decision just made wo will provide Mr. Sisk an 7 opportunity to comment and any other parties to respond if he 8 cares to.
9 Do you have additional comments, Mr. Sisk? Have you 10 been briefed about what has transpired this morning?
11 MR. SISK: I believe I have, Judge Gleason. I've 12 talked with Mr. Irwin. I offer only a few brief comments if 13 the Board would care to hear them. ;
14 JUDGE GLEASON: All right. Go ahead, please.
( ) 15 THE WITNESS: Judge Gleason, I will try to be very 16 summary in these comments.
17 From my perspective, in the trenches of the discovery 18 recently it is very apparent that the Interveners' objective 19 for months has been to pursue their contentions before this 20 board, before the appeal board, and in any other forum, and 21 thereby hold up a licensing decision for this plant while 22 simultaneously refusing to permit any meaningful discovery 23 against him.
24 That has been true throughout the course of this 1
25 remanded proceeding, and the Board is fully familiar with that.
Heritage Reporting Corporation
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S 20920 1 The Interveners' position, as I see it, has been and
/~T 2 remains today that LILCO and the other parties should simply LJ 3 accept the representations of the people that the Interveners 4 chose to put forward, and that LILCO should not ask too many 5 questions of those people.
6 When we have asked questions there have been a number 7 of them that the Interveners have been unable to answer 8 satisfactorily. And many have been evaded. That's continuing 9 today.
10 The only thing that has changed from several months 11 ago to today is the style of the pleadings under which the 12 various arguments have been made.
13 We believe the Board would be warranted in dismissing 14 the Interveners entirely from the proceeding at this stage. We
( ) 15 believe the Board would be warranted also in ordering the 16 discovery LILCO has requested one final time, and warning the 17 Interveners that they will be dismissed if they refused to 18 comply with that order.
19 Discovery, after all, can only reveal the truth. It 20 can only illuminate facts. And if Interveners are willing to 21 rist being totally dismissed from this proceeding in order to 22 continue hiding the facts,. we believe that will be telling.
23 As before, we believe the L'oard should not restrict 24 the witnesses to those that the Interveners put forward. I can 25 explain bock chapter and verse if the Board is interested as to Heritage Reporting Corporation
() , (202) 628-4888 i
^
s
. i 20921 ,
I 1 why we've identified the people we have.
{} 2 3
But I don't propose to go into that unleos the Board has questions. A point, Judge Gleason, is not that we want to 4 get embroiled in any collateral proceeding. We don't.
5 We want to merit decision on the licensing of this 6 plant. We don't want that to be held up on a stay, or on some 7 complex and unwarranted quasi-criminal procedure.
8 Our concern is getting a license for the plant, and 9 that's why we' re requesting the relief we have.
10 JUDGE GLEASON: Does the -- Ms. Letsche, do you have 11 any comments you want to make in response to thut, or any other 12 party?
13 MS. LETSCHE: Judge Gleason, I really didn't hear 14 anything new or different in Mr. Sisk's characterizations of his beliefs about the motives of the government.
( ) 15 16 I think that the papers that have been filed 17 previously set forth fully and completely the government's 18 position.
19 JUDGE GLEASON: All right.
20 Anyone else have any comments they want to make?
21 (No response. )
22 JUDGE GLEASON: All right. Fine, If you'll hold 23 with us in a minute we'll be right back.
24 MS. YOUNG: Judge Gleason?
25 JUDGE GLEASON: Yes.
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20922 1 MS. YOUNG: Ms. Young.
('T y ,)
2 I have one short comment that's not directly in 3 response to Mr. Sisk, but it --
4 JUDGE GLEASON: Well, I'd prefer to have your 5 comments directed on whatever Mr. Sisk brought up.
6 MS. YOUNG: You see the Board may have misunderstood 7 something I said this morning. It would only be to clarify 8 that.
9 JUDGE GLEASON: Well, go ahead.
10 MS. YOUNG: Okay. Very briefly, the staff maintains 11 its position in its June 15th filing that there is enough 12 evidence on record to date to warrant the dismiusal of the 13 reasons and contentions for failure to comply with the Board's 14 discovery orders.
) 15 That's it.
16 JUDGE GLEASON: All right. Thank you. We'll be back 17 in a minute.
18 JUDGE GLEASON: All right, gentlemen. This is Judge 19 Gleason back again. Is everybody in attendance?
20 MR. IRWIN: Mr. Irwin.
21 MS. YOUNG: Ms. Young.
22 MR. CUMMING: Mr. Cumming.
23 MS. LETSCHE: Ms. Letsche.
24 MR. ZAHNLEUTER: Mr. Zahnleuter.
25 NE. SISK: Dennis Sisk.
Heritage Reporting Corporation (202) 628-4888
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20923 l 1
1 JUDGE GLEASON: All right. The Board really is not l l
2 ready at the present time to make a decision on the Applicant's l
[}
3 pending request which in effect would have us decide the entire 4 case completely in LILCO's favor.
5 There may be some merit into the suggestion that the 6 Interveners have made, with respect to a more focused hearing, 7 which would be directed by the Board itself.
8 And we would like to at least give that further 9 consideration. We do not look at that hearing if it is to take 10 place as a collateral proceeding.
11 And I want to make that very clear. It is a matter 12 that the Board can lead a proceeding in under the rules so we 13 have no doubt about our rights and authority te do that.
14 But it is a part of the same proceeding which has
( ) 15 been litigated.
16 We think the best way to proceed, at least to get us 17 out of the present impasse, and we are conscious of the fact 18 thst there is existing an impacse now, and we do not intend to 19 add to that.
20 We are trying in every method that is available to us 21 to get to a final decision with respect to these contentions.
22 And we would like to have, to help us make this decision by, 23 let's say Tuesday at 12 o' clock noon, at least a thermafax copy 24 simply because there is obviously a controversy among the 25 parties, that if such a hearing were held with the Board taking Heritage Reporting Corporation
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20924 l
'I a lead position of that hearing, which people would you 2 recommend would be the witnesses for such a hearing?
{
3 And we would like to have in that connection, of 4 course _they should be people that are knowledgeable officials 5 testifying who had, or should have had knowledge of such plans. !
t 6 Now the issue that we're talking about, again, is 7 whether -- the basic issue is whether state and county ,
8 emergency plans may have been withheld during the proceeding.
9 And if such plans were withheld what were the ,
10 circumstances surrounding the withholding? .
11 Witnesses ought to be knowledgeable about not 12 necessarily that aspect, but knowledgeable about the plants 13 themselves, and who had access to them, and knowledge of them, 14 and so forth.
We could leave -- so in any event I think that that
( ) 15 16 would be the best way for us to proceed to get to some !
17 resolution of where we -- of the problems of where we are at i e
18 the present time.
19 The area that we're engaged in in attempting to get 20 additional information is a discreet area. It's a narrow one f
21 but it is an important area for reasons that I won't repeat 22 that I've gone into in the past.
23 But we de have to protect the legitimate rights of 24 all the parties in the proceedings. And so even if this ;
25 hearing were to be held, when the Board get through with its Heritage Reporting Corporation
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20925 1 questioning of such witnesses, why then the other parties would
/~T 2 certainly have the rights to question such witnesses in U
3 addition thereto.
4 But in any event, we think that that's the best way 5 to get from here to the next step. And then the Board, 6 Tuesday, after it receives your responsea and evaluates them, 7 we will be able to get in touch with you probably by another 8 telephone conference, and tell you what our decision is, not 9 only with respect to that hearing but with respect to the 10 additional discovery -- or the discovery, not additional, but 11 discovery that's been requested, and also the additional 12 subpoena that's been requested.
13 We are tempting to bring this thing to some kind of a 14 successful resolution. And it's unfortunate, but these things
( ) 15 get interwoven with each other, and we have to unscramble them 16 as best we can.
17 So I know that I've been a little bit rambling here.
18 I hope that you understand exactly what I've asked you for.
19 And if there's anything that needs to be clarified I guess we'd 20 better do it right now.
21 MS. LETSCHE: Judge Gleason, this is Ms. Letsche. I 22 just have a clarifying question.
23 JUDGE GLEASON: All right.
24 MS. LETSCHE: I gather from your request for 25 additional briefing that at this stage everything is basically Heritage h porting Corporation
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20926 1 put on hold.
~
2 JUDGE GLEASON: That's right.
3 MS. LETSCHE: Okay. Thank you.
4 MS. YOUNG: Judge Gleason, this is Mo. Young.
5 JUDGE GLEASON: Yes, Ms. Young.
6 MS. YOUNG: As a follow-up to that question, it's my 7 understanding that this morning the Board had ruled that the motion to vacate and the request to stay were premature. Is 4 that still the Board's ruling?
10 JUDGE GLEASON: No. I said that that's our initial 11 reaction to them, they're premature. But we're waiting for a 12 response frca yea bef.te making a final decision.
13 MS. YOUNG: Well, I thank you. I just wanted to 14 clarify that.
JUDGE GLEASON: Yes. You're not going to get out of
( ) 15 16 any work, if that's what you' re asking.
17 MS. YOUNG: We'd never do that.
18 JUDGE GLEASON: Mr. Irwin?
l 19 MR. IRWIN: Judge Gleason, one of the aspects we may i
20 raise in our paper on Tuesdaj is a concern that for a hearing, 21 even a discreet one lead by the Boe.rd to be as informed as 22 possible, it will have to be a prehearing information process 23 which will involve prehearing submissions by parties, 24 particularly if the Board is taking a leave.
25 And secondly --
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20927 1 JUDGE GLEASON: What do you cean by prehearing tT 2 submissions?
'V 3 MR. IhWIN: What do I mean by that?
4 JUDGE GLEASON: Yes.
5 MR. IRWIN: What I would mean would be indications of 6 what we understand the knowledge of witnesses proffered by 7 various parties --
8 JUDGE GLEASON: All right. Okay, fine.
9 MR. IRWIN: And secandly, also, we remain concerned 10 about the absence of discovery and the opportunity to test and 11 organize.
12 We have still yet not received documents from Suffolk 13 County, New York state we requested months ago in anticipation 14 that we would get them before deposition.
Mr. Lanpher sent us a letter three days aJs
( ) 15 16 responding to a letter which we had sent when some promised 17 documents were not received.
18 Mr. Lanpher's J etter said in essence, you're correct.
19 You're not going o receive those documents because the Board 20 has ruled that the realism contentions are not going forward.
21 Therefore you will not get the documents we had i
- 22 committed to provide. It is that kind of approach to l
23 litigation that leaves us worried about a hearing conducted in l 24 the blind.
l
- 25 JUDGE GLEASON
- Well, we don't intend to have such a l
l l Heritage Reporting Corporation
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20920 1 hearing conducted in the blind. The Board itself is quite 2 concerned about the fact that these depositions have been
}
3 halted. And the fact that the interrogatories have not been 4 answered.
5 But we're currently at an impasse situation here, and 6 we' re attempting to resolve that. And we will resolve it 7 hopefully as soon as we get your paper next week on these 8 witnesses.
9 MR. IRWIN: Thank you, sir. That's all we have to 10 say at this point.
11 JUDGE GLEASON: Mr. Sisk?
12 MR. SISK: I have nothing to add.
13 JUDGE GLEASON: All right. Fine.
14 All right. Then we'll receive your papers that we
( ) 15 requested by 12 noon, and then we'll be back to you very 16 shortly thereafter. .
17 Thank you all.
18 (Whereupon, at 3:23 p.m., the hearing was concluded.)
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l 25 I Heritage Reporting Corporation (202) 628-4888 i
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1 CERTIFICATE 2
3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of:
5 Name: Long Island Lighting Company (Shoreham Nuclear Power Station Unit 1) 7 Docket Number: 50-322-OL 8 Place: Bethesda, Maryland 9 Date: June 24, 1988 10 were held as herein appears, and that this is the original 11 transcript thereof for the file c the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a 0 15 true and accurate record of the foregoing proceedings.
16 /S/ h wo 3
17 (Signature typed): Alan Friedman 18 Official Reporter 19 Heritage Reporting Corporation 20 21 22 23
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l (2) l Heritage Reporting Corporation (202) 628-4888 t _. _