ML20199E792
| ML20199E792 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/20/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#286-792, CON-#386-792 OL-3, NUDOCS 8606240072 | |
| Download: ML20199E792 (35) | |
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O UN11EU STATES NUCLEAR REGULATORY COMMISSION ORLG WAL IN THE MATTER OF: DOCKET NO:
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
TELEPHONE CONFERENCE O
LOCATION: WASHINGTON, D. C. PAGES: 16051 - 16083 DATE: FRIDAY, JUNE 20, 1986
]Th bI 0 l ACE-FEDERAL REPORTERS, INC.
Official Reporters 444 North CapitolStreet 8606240072 860620 202)
PDR ADOCK 05000' 2 NATIONWIDE COVERAGE
CR27254.0 16051 OMT/dnw 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LINCENSING BOARD 4
- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -x 5 .
In the Matter of: :
7 LONG ISLAND LIGHTING COMPANY : Docket No. 50-322-OL-3 g (Shoreham Nuclear Power Station, :
Unit 1) :
9 -----------------~X 10 Ace Federal Reporters, Inc.
Room 402
- 11 444 North Capitol Street, N.W.
Washington, D. C.
12
( Friday, June 20, 1986
/~N 13 k The telephone conference in the above-entitiled matter i 14 convened at 10:00 a.m. i BEFORE:
16 JUDGE MORTON 9. MARGULIES, Chairman 17 ,
, Atomic Safety & Licensing Board Panel g U.S. Nuclear Regulatory Commission >
Washington, D. C.
19 JUDGE JERRY R. KLINE,. Itember 20 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission 21 Washington, D. C.
22 JUDGE FREDERICK J. SHON, Member Atomic Safety & Licensing Board Panel 23 U.S. Nuclear Regulatory Commission Washington, D. C.
24
() 25 -
-- continued --
ACE. FEDERAL REPORTERS, INC.
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16052
-- 1 APPEARANCES:
2 On behalf of Long Island Lighting Company 3
DONALD P. IRWIN 4
Hunton & Williams-5
"' C" '
6 LEE B. ZEUGIN 7 KATHY E. B. McCLESKEY 8 On behalf of Suffolk County 9 LAWRENCE COE LANPHER Kirkpatrick & Lockhart 10 HERBERT H. BROWN 11 l KARLA J. LETSCHE 12 13 On behalf of the State of New. York
~
' C') '
14 FABIAN PALOMINO 15 i n behalf of NRC Staff 1
16 BERNARD BORDENICK 17 l STEVE LATH 18 EDWIN J. REIS 19 20 1
21 22 '
23 24 t') .
() 25 ACE-FEDERAL REPORTERS, INC.
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2540 01 01 16053 1 PROCEEDINGS
()OMTbur 2 JUDGE MARGULIES: Good morning.
I 3 This is Judge Margulies. With me this morning 4 are Judges Kline and Shon.
5 As you know, we have scheduled to hear suffolk 6 County's -- just one minute, let me get my papers in order.
7 (Pause.)
8 We have scheduled for hearing this morning 9 LILCO's motion to implement Board Order of June lith, 1986.
10 It was received by the Board in the early afternoon of June 11 18th. As you know, we contacted all the parties that day to 12 set up this conference to hear the response.
() 13 This morning at approximately 9:10 a.m., we 14 received a document entitled "Suffolk County Preliminary 15 Reply to LILCO's Motion to Implement Board Order of June 16 lith, 1986."
17 We will take up both documents this morning.
18 Before we get started, I would like to take 19 appearances for the record. We will start with the 20 Applicant, then go to the Intervenors and then to Staff and 21 FEMA.
22 Would you please start with the Applicant.
23 MR. IRWIN: Thank you, Judge Margulies. My name 1
24 is Donald Irwin. I am with the firm of Hunton & Williams,
() 25 representing Long Island Lighting Company.
ACE-FEDERAL REPORTERS, INC.
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2540 01 02 16054 1 Present with me in my office are my partner James
{}OMTbur 2 Christman and also two other lawyers from our firm, Lee 3 Zeugin and Kathy McCleskey.
4 MR. LANPHER: This is Lawrence Coe Lanpher, 5 representing suffolk County.
6 With me are Herbert H. Brown and Karla 7 J. Letsche.
8 MR. PALOMINO: This is Fabian Palomino. I am ,
9 representing the State of New York.
10 MR. SCHER: This is Martin A. Scher, representing 11 Suffolk County.
, 12 MR. BORDENICK: Good morning. This is Bernard
/~ 13 Bordenick. Is Steve Latham on the call?
V) 14 JUDGE MARGULIES: My office received a call 15 yesterday at 3:45 p.m., in which Mr. Latham stated that he 16 had provided his views to Mr. Lanpher.
17 Is that correct, Mr. Lanpher?
18 MR. LANPHER: Well, I spoke with Mr. Latham after 19 he had talked with your office, Judge Margulies. Mr. Latham 20 had indicated -- he did indicate to me his views on the 21 procedural aspects, but that he also indicated that he had 22 passed on, I guess to your Secretary, his objection to any 23 attempt to convert this, in effect, to a prehearing
) 24 conference, and that he would want to be heard in writing
() 25 if that were the case. -
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T"'OMTbur 1 JUDGE MARGULIES: It is in the note from my V
2 secretary. She states:
3 One matter of grave concern, that the motion is 4 an effort to have a prehearing conference by phone and a 5 ruling on the elements stated in the motion which should 6 have occurred at a prehearing conference and that he had 7 also given his views to Mr. Lanpher.
8 Do we have any other appearances?
9 MR. BORDENICK: Yes, Judge Margulies. Bernard 10 M. Bordenick, and also present with me is Edwin J. Reis. We 11 represent the NRC Staff.
12 MR. GLASS: And S,tewart M. Glass, from the
() 13 Federal Emergency Management Agency.
14 JUDGE MARGULIES: We had hoped to set up a 15 prehearing conference with as little difficulty as 16 possible. We thought that if we left the matter to the 17 parties and then they used their own resourcefulness, we 18 would get an expeditious and satisfactory disposition.
19 We have attempted to do this in other proceedings 20 and have obtained some very desirable results.
21 To the contrary, we are being faced with the very 22 opposite. It has given rise to a flurry of motions. It is 23 time-consuming, and it isn't getting us anywhere. We will 24 attempt to resolve the problem today by means of this
() 25 conference call. -
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2540 01 04 ; 16056 7"SOMTbur 1l We have had an opportunity to read the motion of NJ l 2 the Applicants and the reply, and the Board concludes that 3 hearing a motion would not undo the integrity of the July 4 8th conference and that there are matters here that are not 5 premature.
6 I think at the outset we should state that we 7 have determined to set up the prehearing conference for 8 Tuesday, July 8th, in the Court of Claims, the New York 9 State Court of Claims Building at Hauppauge, New York, the 10 conference to commence at 9:30 a.m.
11 Is that satisfactory to all the parties?
12 MR. IRWIN: It is to LILCO, Judge Margulies.
(} 13 MR. PALOMINO: It is to the State of New York.
14 MR. LANPHER: Judge Margulies, this is 15 Mr. Lanpher.
16 It is not satisfactory to us. We are not going 17 to commit that it is satisfactory because we don't know what 18 the subsidiary rulings are.
19 It is satisfactory to us to have a prehearing 20 conference on July 8th, as set forth in our reply filed this l 21 morning, to address the matters which are set forth in your 22 July 11 memorandum, and to quote from that, you stated that 23 it would be to schedule a prehearing conference to consider 24 the matters that will be at issue, the procedures to be 25
(]) employed, and the setting of schedule as well as any other
- ACE-FEDERAL REPORTERS, INC.
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2540 01 05 16057 1 topics customarily reviewed before commencing a hearing.
{)OMTbur 2 And if that is the purpose of the July 8th 3 prehearing conference, we are in. agreement.
4 JUDGE MARGULIES: Do any of the parties have any 5 problems with attending the conference on that date at that 6 location?
7 MR. BORDENICK: This is Bordenick.
8 The Staff has no problem.
9 MR. GLASS: This is Glass, from FEMA.
10 No problem.
11 JUDGE MARGULIES: And I assume, Mr. Lanpher, you 12 have no problem with the time and place of that conference?
() 13 MR. LANPHER: That is correct.
14 JUDGE MARGULIES: It is not the purpose of the 15 Board to attempt to beat a dead horse. We were not able to 16 have the conference yesterday. We are not looking to 17 ascribe responsibility as to why it was not held, and we are 18 going to proceed from there.
19 We are holding this conference on the motion on 20 the short notice. It is imperative that we do so. I am 21 going off on hearings for the next two weeks, and it was the 22 only way we could reasonably review the motion.
23 Turning to page 5 of the motion, we have 24 resolved Request No. 1.
() 25 Moving on to Request No. 2, that is resolved in ACE-FEDERAL REPORTERS, INC.
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2540 01 06 16058 f")OMTbur 1 terms of the time and place for the prehearing conference.
v 2 We next come to the matter of Applicants' request 3 to file the contentions by not later than June 27 th and that 4 the Board should put the parties on notice that any 5 contentions failing to meet the requirements of the 6 Commission's regulations as supplemented by its order of 7 June 6th are subject to summary rejection.
l 8 Could you amplify that, Mr. Irwin, in terms of 9 what you mean by summary rejection?
10 MR. IRWIN: Yes, Judge Margulies.
11 What we intended there was to, I suppose, simply 12 ensure that there was reasonably careful pleading, which I
(} 13 know from experience counsel on the other side are 14 thoroughly capable of.
15 What we want to do is avoid extraneous issues.
16 The Commission set out very clearly in its order that it 17 didn't intend for this Board to be bothered or the parties 18 to be put through having to try issues that were not of 19 fundamental importance, that didn' t reveal -- to use the 20 Commission's words -- fundamental flaws in LILCO's plan.
21 And it just seems to me that while we may be 22 talking about something which can be -- a problem which can 23 be resolved by artful pleading and to take care of later at l
24 a summary disposition stage, at least there is a --
() 25 consistent with the good faith pleading rules, it would ACE-FEDERAL REPORTERS, INC.
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(~'T OMTbur 1 seem to me that this would help to narrow and focus and make k) 2 parties concentrate on the issues which they really think 3 are important.
4 The reason I mention this is that this is 5 intended to be a fairly focused proceeding, right on the 6 exercise, not intended to be a reprise of some six to seven 7 or actually nine months of hearings already reclamoring the 8 emergency plan itself, and we see possibilities of that, and 9 we don't think the Commission intended it.
10 That is really the focus that I was hoping for, i 11 Judge Margulies. I was going to say I don't intend for 12 pleading of contentions to be a substitute for summary
() 13 disposition of well-pleaded contentions, but I think it 14 should serve as a threshold barrier and make lawyers start 15 exercising their thought processes at the earliest possible 16 moment.
17 JUDGE MARGULIES: Do the other parties wish to be 18 heard on that?
19 MR. BROWN: For the County, this is Herbert 20 Brown speaking, Judge Margulies.
21 We don't understand why, with your ruling setting 22 the prehearing conference on July 8th, there is any further 23 discussion to go on with respect to this item Mr. Irwin 24 mentioned other than the fact that he wanted to explain his
() 25 point at your request, and we don't object to him "
ACE-FEDERAL REPORTERS, INC.
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I 2540 01 08 16060 1 explaining such a point.
(}OMTbur 2 But your order of June lith, which is not only 3 customary, to use the words of the Board itself, which used 4 " customary" at the bottom of page 1, but specifically the 5 law of the case is that the setting of schedules will be at 6 the prehearing conference.
7 We have relied on that. We intend to rely on 8 that.
9 Mr. Latham isn't here. We don't -- have not 10 conferred with Mr. Palomino as to the substance of this, and 11 no matter how much conferrir.g we want to do now with respect 12 to what schedule makes sense, we do not have the
()
13 information. That has been withheld arbitrarily from us by 14 both FEMA and by LILCO.
15 Since the date of that exercise, we have 1
16 tenaciously sought documentation exclusively in their hands, 17 documentation which is imperative for us to have which they 18 have deliberately withheld, and I am sure if we could see 19 them now their faces would be red.
20 They have used this as a tactic and a device to 21 deny us information to which we are entitled as a matter of 22 equity and propriety, and any issue as to the setting of 23 schedule should be done at the prehearing conference, with 24 that equity weighing most heavily against those parties.
() 25 They have denied us that within their hands they l
l ACE-FEDERAL REPORTERS, INC.
202-347 3700 Nationwide Coverage 800-336-6646
I 2540 01 09 l 16061 1 knew we needed, and they have done it for the purpose of
(])OMTbur 2 putting us at a disadvantage.
3 And when we get to the prehearing conference, we 4 will have an opportunity hopefully by then to have all the 5 information that they should have given us long ago, and we 6 will be in a position to do what your June 11 order stated, 7 the law of the case; namely, we shall have a prehearing 8 conference to consider, among other things, "the setting of 9 schedule."
10 And with that, I would respectfully urge this 11 Board on behalf of the County that we terminate the l 12 conference and that the parties go on and act constructively
() 13 without doing end runs around each other and the Board to 14 cause this Board to invoke its jurisdiction over matters of 15 frivolity.
16 And I submit that what Mr. Irwin has put before 17 the Board now is a matter of simple frivolity that should be 18 cast aside so that we can all get on to substantive l
19 matters.
20 JUDGE MARGULIES: What you are doing, Mr. Brown, 21 is actually addressing the first sentence of 3(a) and saying 22 that we should not set a date for filing of contentions?
23 MR. BROWN: Well, that is, yes, one way of 24 putting it, sir. Another way is to say I am also addressing
() 25 your June 11 order in saying that that is a properly "
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2540 01 10 16062 1 conceived and properly issued document that all the parties
(~')hOMTbur u
2 should rest upon, and we have to do that, obviously, not 3 only in light of it being the law of the case but in light 4 of the practical reality that we don' t have documentation, 5 which has been arbitrarily and abusively withheld from us.
6 MR. IRWIN: Judge Margulies, this is Mr. Irwin.
7 I guess I am going to have to respond to that 8 briefly.
9 First, Mr. Brown may rely on what he thinks is 10 law of the case, but I think part of the experience of this 11 case and also the construction of the Commission's 12 regulations don' t decree any kind of elaborate, eighteenth
() 13 century formula for what constitutes the kickoff for a 14 proceeding.
15 You have a functional approach to getting the 16 parties together. The parties know each other intimately by 17 now after five years of litigation. We don' t need to have a 18 formal ribbon cutting to start this proceeding.
19 And the Board's order was, it seems to me, 20 proper. I agree with Mr. Brown on that. Where I take off, 21 from Mr., Brown is his attempt to delay by a month any action 22 on that order, and I think that is the reason we ended up 23 where we are today.
24 secondly, with respect to the information
() 25 available to the Intervenors, as Mr. Brown knows, Suf folk l
l ACE-FEDERAL REPORTERS, INC.
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2540 01 11 l 16063 i
. OMTbur 1 County, New York State, and the Town of Southampton had 2 physically pressnt at the exercise over 20 observers. That s
3 is significantly more than have been present from 4 Intervenors in any other exercise ever held. I believe it 5 was probably at least twice, perhaps three times as many.
And secondly, they have the FEMA exercise reports 6l 7 I since late April.
8 Third, they have received from Long Island 9 Lighting Company at least two sets of documents and they 10 will receive more by the end of this week.
11 i The FEMA report, however, embodies the results of i
man-months of expert analysis of a one-day exercise, which 12 }
13 ,
over 20 people from these organizations observed firsthand, 14 and it just strikes me as incredible that they claim that 15 they cannot formulate the contentions based on the 16 information presently available to them.
17 The rules provide for amendment of contentions 18 upon good cause shown and if discovery reveals bases for 19 amendment of those contentions, they are well able to file 20 papers on short notice.
21 MR. BROWN: Judge Margulies, I would beg leave of 22 the Board to reply just to the additional points raised.
23 This, needless to say, is the most serious 24 hearing that has come along in this proceeding. As far as O 2s we ere coaceraed, it te ooiao to he the eermiaeeloa or the 1
ACE-FEDERAL REPORTERS, INC.
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2540 01 12 16064 1 controversy and the Shoreham plant will indeed be confirmed
{}OMTbur 2 not to operate, as was the denial of,this Board earlier 3 providing for the parties to learn the lessons.
4 What Mr. Irwin has put forward is just a series 5 of cliches which don't address the fact that we have been 6 denied the opportunity to have information which is critical 7 and which must be so critical that he himself stated in his 8 pleading he would give us within a week.
9 FEMA hasn't even put forth an excuse why it 10 hasn't given us those.
11 Everything that has happened to this date, as the 12 exchange of correspondence shows attached to our memorandum,
() 13 is that we complied with the Board's order of June lith, and 14 the order of June lith provided there be a prehearing 15 conference this week -- or the week of July 7th.
16 The agreement upon the parties was there would be 17 such a meeting only possible July 7th. There was no attempt 18 to delay. The action of the parties was in conformance with 19 what the Board stated, the week of July 7th.
20 We are prepared to go forward. We are prepared i
21 to implement the order. It is LILCO that seeks to undo the 22 order.
23 JUDGE MARGULIES: Mr. Brown, do you have 24 information available that would permit you to start the
() 25 formulation of contentions? -
l 4
ACE-FEDERAL REPORTERS, INC.
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1 MS. LETSCHE: Judge Margulies, this is
(}OMTbur 2 Ms. Letsche. I am here with Mr. Brown, and I can answer 3 that question for you.
4 And the answer is no. We have been requesting 5 since a few days after the exercise the materials, which 6 consists primarily of logs prepared by the FEMA evaluators, 7 the FEMA simulators, and also by those members and the 8 controllers and evaluators and also by people who were the 9 " players" in the exercise; that is, the LILCO players, 10 documenting what happened during the exercise.
11 Those are the documents which we have yet to 12 receive, and what they did -- we have the exercise scenario, 13 which is a very sterile document, sort of in outline form of
(])
14 what was supposed to have happened, and we do have the 15 exercise report. But we do not have the information which 16 tells us what actually happened during the exercise.
17 That is when pre-play messages were given to 18 excerise players, what simulators told the players, when 19 they told the players those things, and what the players did 20 in response, and the players' response is obviously the most 21 crucial aspect if we are supposed to be evaluating the 22 results of the exercise and whether they passed all the 23 tests.
24 It is correct that we received from FEMA certain
() 25 LILCO-generated documents during the exercise. Those were ACE-FEDERAL REPORTERS, INC.
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2540 01 14 16066 1 some of the documents that LILCO generated that were given
(])OMTbur 2 to FEMA.
3 Clearly, LILCO has substantially more documents, 4 since they have indicated they will give them to us next 5 week. If we had had them sometime earlier than next week, 6 we could have been reviewing them and putting them to use to 7 help us figure out what happened in the exercise.
8 And Mr. Glass, on behalf of FEMA, has been saying 9 for several months that all the FEMA-generated documents, of 10 which we have none, are in his possession or in the 11 possession of a FEMA contractor and that he would send them 12 to us, but we have yet to receive anything.
() 13 So the short answer to your question is, no, we 14 do not have adequate information to be able to draf t 15 specific and detailed contentions at this point.
16 MR. LANPHER: Judge Margulies, this is 17 Mr. Lanpher.
18 MR. GLASS: Your Honor, this is Stewart --
19 MR. LANPHER: The mention that having 20 20 observers, or whatever the number was, puts us in some sort 21 of unique position to file contentions simply cannot go 22 unrebutted.
23 I was one of those observers. Ms. Letsche was.
24 Mr. Brown was.
() 25 At my location I was told to stay in a hallway.
ACE-FEDERAL REPORTERS, INC.
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1 I could not overhear things that were going on.
(O'TOMTbur 2 Mr. Christman was there with me much of the 3 time. I had to stay in the hallway. I was allowed to put 4 my head around the door a couple of times.
5 I was not allowed to go in and hear the 6 conversations that were going on. I would have very much 7 liked to, but they had rules that were set up, and one of 8 our agreements in being there as observers was that we were 9 going to follow the rules. We didn't like the rules, but we 10 had no choice.
11 But we just -- notwithstanding being there, there 12 was immense quantities of critical data that we don't know
() 13 anything about, and that is why we can' t file contentions.
14 l JUDGE MARGULIES: Let's hear f rom Mr. Glass.
15 MR. GLASS: Okay.
16 MR. BORDENICK: Stewart?
17 MR. GLASS: Yes.
18 MR. BORDENICK: Could I speak first? This is 19 Bordenick for the Staff.
20 MR. GLASS: Certainly, go ahead.
l 21 MR. BORDENICK: First of all, I would like to j 22 object to the fact that we seem to have three spokespersons 23 for the County. I think there should just be one. That is l l
24 number one. l
() 25 Number two, I think this whole argument about ACE-FEDERAL REPORTERS, INC.
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2540 01 16 16068 OMTbur 1 what documents they have gotten or haven' t gotten is totally 2 irrelevant. You have discovery after you have contentions.
3 We don't have contentions yet. Therefore, they were never 4 entitled to discovery.
5 The only documents that they need to prepare 6 contentions is a document which they have had in their hands 7 for quite some time , and that is the FEMA report.
8 I fully support Mr. Irwin's motion. I think we 9 should go ahead and set a date today within which the County 10 and the other Intervenors, if they still see fit, to file 11 contentions. The Court can than rule on the contentions and 12 a discovery schedule can be set, and then we can argue about O 13 what it is that they have gotten and what it is that they 14 should get.
15 MR. IRWIN: Judge Margulies, this is Mr. Irwin.
16 Let me supplement Mr. Bordenick's remarks in two brief 17 respects.
18 They really go more to the utilization of 1 19 information than to its entitlement at this stage.
20 I believe if Ms. Letsche will look more closely i 21 at the documents which she has been provided by FEMA, she 22 will find that, first of all, the scenario that she has 23 available to her and other ancillary documents provides 24 detailed time lines of all the events which were to occur in O 25 the exerciee. 1 ACE-FEDERAL REPORTERS, INC.
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2540 01 17 16069 1 Only information which might be revealed by
'()OMTbur 2 additional documentation would be departures from the time 3 lines from that detailed scenario, and if those are 4 significant, I am sure that significance can be adduced.
5 But the fact of the matter is that analysis of 6 the documents they now have were put together minute by 7 minute, and it is the plan of the scenario at all the 8 locations where things were supposed to be taking place.
9 Secondly, Ms. Letsche says she does not have the 10 LILCO player documents. That is simply inaccurate. The 11 documents which FEMA produced -- and we know this because we 12 redacted the names of the LILCO players from those
() 13 documents -- are all of the LILCO player documents within 14 FEMA's possession.
15 The only additional LILCO documents which they 16 will receive from us will be duplicates of those player 17 documents so that they can check FEMA's inventories against 18 ours, and my preliminary review tells me that the 19 correspondence is very, very close.
20 They have had these documents since mid-May, and 21 there is just no excuse for Ms. Letsche to make those 22 representations today.
23 JUDGE MARGULIES: Mr. Glass.
24 MR. G LASS : Yes, we produced and, within
() 25 cooperation with LILCO, we arranged for the distribution of -
ACE-FEDERAL REPORTERS, INC.
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2540 02 01 1607'O 1 the scenarios. We sent the exercise objectives, the
()OMTbur 2 scenario. We provided the documents that were originally 3 provided to us by LILCo. That alone took five days of my 4 time and involvement. I even reviewed them this week to 5 make sure that everything was sent out, and when we reviewed 6 them, I found, I think, one set of documents -- when I say 7 one set, about six pages -- that did not match up, and 8 therefore there is another six pages that have to go out due 9 to problems in xeroxing. That has taken, you know, another 10 half day to do that.
11 We have limited resources. I have been going 12 through the material. I have another workload. ,
And we are
() 13 not intentionally trying to provide any -- to cause any 14 problem at that point.
15 We have produced documents. We are going to go 16 through the other documents.
17 The documents that were utilized by the people 18 that were putting together the exercise report were not 19 available until such time that that report was finished and 20 that that material was indexed and inventoried and then l
21 provided to my office. We are trying to get to it. We 22 have, unfortunately, limited resources in this agency, 23 including the fact that I stayed late last night to start 24 xeroxing it personally. That is how we get some of these
() 25 things done. And the xerox machine broke down. -
ACE-FEDERAL REPORTERS, INC.
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2540 02 02 16071 1 So we are not intentionally trying to delay
()OMTbur 2 anybody. As to the documents that have been produced and 3 that will be produced, I agree with what Mr. Irwin has said 4 that the documents clearly show the original proposed time 5l line and any deviations therefrom.
6 The documents that are in our possession deal 7 with those logs. We will be producing those.
8 The documents that we will not produce -- and I 9 am sure will be subject to a discovery dispute, as they have 10 been in other hearings, and then we have been upheld -- is 11 we are not going to produce the individual exercise reports 12 by the individual observers, and we have told Ms. Letsche
() 13 this from the very beginning that we would object to their 14 production.
15 And we are trying to move forward.
16 Since the Board is dealing with scheduling 17 issues, I think there is a couple of points that FEMA should 18 make clear at this point. FEMA has recently gone through a 19 reduction in force. The present RAC chairman has been 20 reassigned to other duties, and I do not know if he will 21 even be available for testimony during this upcoming 22 hearing.
23 The other gentlemen have commitments during 24 August that would make it difficult for them to appear
() 25 during August, and one of the gentlemen may be involved in "
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1 the Seabrook proceeding. So we are going to have to see how
()OMTbur 2 that tracks as to his availability.
3 As to my own availability, I have been informed 4 that due to cutbacks it is expected that all the regional 5 counsel offices will be closed by October 1st. We have 6 closed every regional counsel office except two already, and 7 those people have been released.
8 So I think that some of these factors, when 9 people are talking about scheduling, FEMA is willing to be 10 available as possible for the Board's convenience, but the 11 Board should be aware of some of the problems that FEMA is 12 going through.
() 13 JUDGE MARGULIES: The Board wil1 take a short 14 time for discussion among themselves. Would you just please 15 hold on?
16 (Discussion off the record.)
17 JUDGE MARGULIES: The Board is back now.
18 The Board has discussed Item 3(a), and the Board 19 is going to rule upon it at this time.
20 The Board is not going to set a date for the l
21 filing of contentions at this time.
22 But the Board has reviewed the matter and 1
23 believes and finds that the Intervenors have sufficient 24 information that they can start preparing contentions.
() 25 There are enough public documents available and other 1 ACE-FEDERAL REPORTERS, INC. l 202-347-3700 Nationwide Coverage 800-336-6646 l
2540 02 04 16073 documents that should allow the Intervenors to start the
(})OMTbur 1l 2 process of preparing contentions, and we will expect 3 Intervenors to start preparing contentions as of today.
4 In terms of setting a date when the contentions 5 are due, that will be done at the prehearing conference on 6 July 8th.
7 MR. LANPHER: Okay, thank you, Judge. ;
8 MR. BROWN: Thank you, Judge.
9 JUDGE MARGULIES: Moving on to Item 3(b), in 10 terms of filing responses to contentions, would the parties l
11 want to discuss that period?
12 Evidently, Applicants are willing to respond
() 13 within a period of something like one week af ter the 14 contentions are in.
15 MR. IRWIN: Judge, that is right as a general 16 proposition. That presumes that there will be reasonable 17 diligence exercised by the Intervenors in tailoring their 18 contentions.
19 If we receive a 500-page document containing 1700 20 subparts of 326 contentions, it may take a little longer to 21 organize and dissect them, but I think with reasonably 22 careful pleading by the Intervenors, which I think is 23 contemplated by the Commission, a week should be about :
1 24 adequate for us.
() 25 JUDGE MARGULIES: As with the Intervenors, we -
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2540 02 05 16074 1 won't set a scheduling date as of today for the period of
()OMTbur 2 time to respond to the contentions, but we will expect the 3 Applicants also to work due diligently with the subject 4 matter and be prepared to respond within a reasonable time.
5 Moving on to Item 3(c), all parties wishing to 6 make a scheduling or procedural suggestion to do so no later 7 than June 7th -- June 27th, this is a matter that 8 Intervenors also believe that a response is warranted, that 9 a date be set. Intervenors use a different date, and 10 Intervenors do not provide for any response to the proposed 11 scheduling or procedural suggestions to be made part of the 12 agenda.
() 13 Do the parties want to address that, the 14 difference between the proposals?
15 MR. IRWIN: Judge Margulies, this is Mr. Irwin.
16 We didn' t receive Intervenors' motion until about 17 9:30 or so, and the page in which a date has been proposed 18 by them is unclear. I don't have a specific legible date.
19 MR. LANPHER: Don, this is Larry Lanpher.
20 We suggested Tuesday, July 1.
21 MR. IRWIN: I guess I don't have any specific --
22 I don' t have any difficulty with that. I think that it 23 would be very useful for the parties to submit their 24- proposals in advance of the prehearing conference in writing
() 25 so the Board can focus on them. "
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2540 02 06 16075 1 I also believe the responses before the
()OMTbur 2 prehearing conference would be useful so that both sides of 3 any given proposal can be fleshed out.
4 I would make a couple of preliminary observations 5 about what I understand to be the two threshold issues that 6 Intervenors have flagged: one, the Nassau Coliseum; and, 7 second, the burden of going forward.
8 The Nassau Coliseum is a totally distinct issue 9 from the exercise, on which no papers have been filed by 10 anybody.
11 And, secondly, the proposal of somehow reversing 12 or altering the normal burden of going forward was an
() 13 argument presented by Intervenors to the Commission in the 14 pleadings that were decided in CL86-ll, and the Commission 15 did not accept Intervenors' argument there. I take it that 16 that argument has therefore been rejected by this body and 17 the Commission.
18 JUDGE MARGULIES: Well, let's take up one thing 19 at a time, and let's get back to the filing of 20 recommendations as to what should be on the agenda, and 21 let's resolve that first.
22 MR. LANPHER: Judge Margulies, this is 23 Mr. Lanpher.
24 You started out this conference call with a
() 25 concern that we are getting a lot of pieces of paper, and
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()OMTbur 1 we heard what you said about trying to start drafting 1
2 contentions, which we will do.
3 We left out the provision for reply because we 4 assumed that if people put their positions reasonably 5 clearly in their initial submissions on July 1 then we will 6 have an opportunity for brief, pointed replies at the i 7 prehearing conference on July 8th, when we get together at 8 the Court of Claims Building on Long Island, and we just i 9 felt that an additional round of papers was just too much.
10 Perhaps if, once the initial submissions come in 11 and the Board reviews them, they want to call for replies, 12 that is of course within your discretion, but I don't think
() 13 we should build that into the schedule up front.
14 That was our reasoning on this.
15 MR. IRWIN: This is Mr. Irwin.
16 I don' t object if Suf folk County doesn' t wish to 17 reply to our proposals. I sometimes find it a useful 18 exercise to try to put my thoughts in writing, and I presume 19 that the Board would not summarily reject any written 20 proposals.
21 I don' t see any need to get any more specific 22 about replies than we have thus far unless the Board wants 23 to.
24 JUDGE MARGULIES: The Board will consult on this
() 25 and get back to you.
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()OMTbur 1 (Discussion off the record.)
2 JUDGE MARGULIES: The Board is back.
3 The Board has determined that we will not need a 4 submission and a reply. A single submission will be 5 adequate.
6 We will set the date as July 1st, and the 7 documents are to be in hand that date by the Board and by 8 the other parties, whether by telecopy or delivered in 9 hand.
10 MR. IRWIN: Thank you, Judge.
11 JUDGE MARGULIES: As I understand, that completes 12 LILCO's motion.
) 13 Is that correct? Does LILCO have anything 14 further on their motion?
15 MR. IRWIN: Judge, this is.Mr. Irwin. We have 16 gone down all the specific items in it, and we thank the 17 Board and the parties for their time this morning.
~
18 We are concerned that this hearing be conducted 19 in the fashion of the Commission order, namely, in an 20 expedited way, and we appreciate the Board's help in 21 furthering that.
22 JUDGE MARGULIES: I believe in terms of those 23 other matters as to the Nassau Coliseum and such, if the 24 parties want to propose that as an item to be discussed at 25 the prehearing conference, they may do so.
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1 MR. IRWIN: Judge, let's take that up right now
()OMTbur 2 because I have a feeling it should not be taken up at the 3 prehearing conference.
4 This Board's jurisdiction, under the Commission's 5 order, extends to a hearing on the results of the exercise.
6 I have enough experience with this proceeding to know that 7 if the issues relating to the Coliseum are part of an agenda 8 for July 8th, there will be demonstrations, there will be 9 endless speeches, and the Board will become in an almost 10 impossible situation in trying to explain how that is a 11 different issue from the exercise, and I frankly think we 12 ought to cauterize that right now.
() 13 MR. LANPHER: Judge, this is Mr. Lanpher.
14 Mr. Irwin is now doing exactly what Mr. Latham 15 objected to and what we have objected to. He is trying to 16 . transfer this into the prehearing conference, and that is 17 just not appropriate.
18 By the way, Judge Margalies, I just got a note !
19 that Mr. Ascher had a telephone failure and is no longer on l 20 the call. Just if that wants to be noted on the 21 transcript. I don't know what the nature was.
22 But getting back to the point, the purpose of 23 your July 1 submissions are to address, as your original 24 order said, the various -- I quote again - "the matters 1
() 25 that will be at issue, the procedures to be employed, and ACE-FEDERAL REPORTERS, INC.
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2540 02 10 16079 Ooardur 1 ene settino oc scaeau1e ena env oener topice c=etomeri1v 2 reviewed before the commencing of a hearing."
3 Now, Mr. Irwin wants to cauterize things, to use 4 his words.
5 It is time to get this proceeding in the open.
6 Let's put our views out there and have them addressed.
7 Mr. Irwin is raising specters of demonstrations 8 and the like. The record ought to note that the 9 proceedings that have been conducted in this case on Long 10 Island have been models of decorum, and to raise such scare 11 tactics I think is totally out of keeping and is 12 reprehensible.
13 MR. IRWIN: Well, Mr. Lanpher, you may not have 14 had a fish thrown at you. I have sat through a lot of 15 evenings and afternoons of limited appearances. Your 16 request for limited appearances in the motion Suffolk County 17 filed.
18 I guess I don' t want to rehash ancient history, 19 but I do think that we should remember what the jurisdiction 20 of this Board is and the scope of this proceeding is, and 21 the Coliseum is not within it, and I think that can be dealt 22 with summarily and ought to be.
23 JUDGE MARGULIES: Well, the reason that I raised i
24 it is that it was part of Suffolk County's reply, and if 25 they don't want to discuss it, then there is no need to ACE-FEDERAL REPORTERS, INC.
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()OMTbur 1 discuss it at this point.
2 MR. IRWIN: I agree, Judge Margulies. I think, 3 though, that what Mr. Lanpher stated is he wants to postpone 4 discussion for his July 1 paper in the first instance and 5 then reclamor it orally at the July 8th prehearing 6 conference, and the Board is going to find itself with a 7 decision to be made then rather than now as to what seems to 8 me to be a pretty clear matter.
9 And I think it ought to be better dealt with now, 10 and if they wish to raise issues regarding the Coliseum, 11 they can do so by a motion to admit a new contention.
12 MR. BROWN: Judge Margulies, this is Herbert
() 13 Brown on a matter collateral, but related to the nature of 14 the Coliseum issue. It is generic, but it pervades this 15 proceeding, and I think it would be very useful if all the 16 parties would share with us this concern and address it 17 prior to setting their views down for a proposed agenda and 18 indeed preparing for the meeting on July 8th.
19 What happened at the Coliseum is a material fact 20 that affects the safety of the public as a result of LILCO's 21 plan no longer having within it a central element, and there 22 are other things that have happened and apparently are 23 happening that in the most dispositive way affect the 24 structure of LILCO's plan and the exercise that was held.
() 25 All of those are safety issues, and everybody, -
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()OMTbur 1 certainly on this telephone call, knows the fundamental 2 principles that matters of safety relevant to an issue are 3 those which the parties must take cognizance of and 4 certainly the Board must be cognizant of because it would 5 not be in anybody's interest to engage in fantasy and 6 fiction as we go forward.
7 So what we would just like to leave the parties 8 with, and indeed, respectfully, the Board with, is that the 9 exercise that was held in several material, very important 10 ways will not be relevant to the presant situation, and how 11 the parties go forward with that fact is something that we i 12 will have to look at.
() 13 One of the alternatives clearly, I think everyone 14 recognizes, is to request or to seek or indeed for the Board 15 sua sponte to issue a ruling which deems the exercise to 16 have been irrelevant and overtaken by events.
17 There may be some other ways to treat this, too, 18 but it is just something of such great importance we felt it 19 should be mentioned in our pleading generally, and I thought 20 it might be useful here to express it in even more generic 21 terms.
22 JUDGE MARGULIES: The Board is going to confer at 23 this point.
24 (Discussion off the record.)
( 25 JUDGE MARGULIES: The Board is back.
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2540 02 13 16082 1 We will not discuss the matter any further at
()OMTbur 2 this time, and the parties may take it up in their 3 submission of the proposed agenda.
4 MR. IRWIN: Judge Margulies, this is Mr. Irwin.
5 I appreciate that.
6 I was just wondering, if I could, Mr. Brown was 7 being even more Delphic'than usual in his last statement, 8 and I am wondering if he could enlighten LILCO as to what 9 further developments he has in mind for Long Island that he 10 believes will be of relevance to iust proceeding on the 11 exercise.
12 JUDGE MARGULIES: Well, would this be appropriate
() 13 to discuss with Mr. Brown apart from this conference call?
14 MR. IRWIN: Judge Margulies, I don't suspect that 15 without the Board's presence I am going to get anything out 16 of Mr. Brown except circumlocution.
17 MR. BROWN: Well, I object to that. I don't want 18 the record to say I am a circumlocutionist. I am not going 19 to reply on the merits of that, but I think we are 20 degenerating here with that comment, your Honor, and I think 21 the best thing would be to do if we click the phones off
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22 right now.
23 MR. IRWIN: Well, the problem, Judge Margulies, 24 is that Mr. Brown made an observation which, if accurate,
() 25 might have some bearing of potential future events for this 7 ACE-FEDERAL REPORTERS, INC.
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()OMTbur 1 hearing, and if he is intending to make it a part of his 2 client's case, I think we ara entitled to know what he is 3 talking about.
4 JUDGE MARGULIES: I do think things are 5 deteriorating, and there is no point to it. If Mr. Brown 6 wants to raise something further, he will do so by his 7 filing of July 1st, and Applicant will see it at that time.
8 Is there anything further?
9 MR. PALOMINO: No, your Honor.
10 MR. IRWIN: Nothing else from LILCO.
11 MR. LANPHER: No, sir.
, 12 MR. BORDENICK: Nothing from Staff.
() 13 MR. G LASS : Nothing from FEMA.
14 JUDGE MARGULIES: I believe the rulings are 15 clear, and I will put out an order memorializing the nature 16 of the rulings, but the parties should have no problem 17 following the ruling.
18 Is there anything further?
19 VOICES: No.
20 JUDGE MARGULIES: There being nothing further, 21 the conference call is concluded.
22 Thank you very much.
23 MR. PALOMINO: Thank you, your Honor.
24 (Whereupon, at 10:55 a.m., the telephone A
(-) 25 conference was concluded.)
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CERTIFICATE OF OFFICIAL REPORTER w
This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING: LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
DOCKET NO.: 50-322-OL-3 PLACE: Washington, D. C.
l'%
U DATE:
FRIDYA, JUNE 20, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
1 (sigt) \me&1hc M (TYPED)N S-JOSEPH R. MAGGIO Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation 1
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