ML20206H068
| ML20206H068 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/03/1987 |
| From: | Leugers M HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3091 OL-3, NUDOCS 8704150244 | |
| Download: ML20206H068 (17) | |
Text
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. LILCO, ~ April 3,1987 c
BBCMETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~d7 FPR 10 All :15 Before the Atomic Safety and Licensing Board UDE " T:~
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m E. " q ;. p. :.
- ..*, e.i,,.1 In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S MOTION TO COMPEL STATE OF 1
NEW YORK TO PRODUCE DOCUMENT In accordance with 10 C.F.R. 5 2.740(f) Long Island Lighting Company ("LILCO")
moves this Board for an order compelling the State of New York to produce a docu-ment, requested by LILCO during the deposition of Langdon Marsh, on which Mr. Marsh intends to rely in preparing his testimony in this proceeding.
I. I_qtroduction On March 6,1987, LILCO deposed New York State witness Langdon Marsh, the Executive Deputy Commissioner of the Department of Environmental Conservation for the State of New York. During the deposition, LILCO requested that a certain docu-ment prepared at the request of Mr. Marsh be produced. The relevant part of Vir.
Marsh's depositon is as follows:
Q Have you reviewed any other documents?
A Yes. I reviewed a memorandum sent to me by Marc Gerstman.
Q And what did that concern?
l A
It reviewed portions of this plan [the LILCO Plan] and pro-vided me with some background on it.
i Q
Is the memo that you got from Mr. Gerstman, is that some-l thing that you requested him to compile for you?
8704150244 870403 DR ADOCK 05000322 s
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, A Yes, I did.
Q So I take it this will be something that you will be using in your testimony as a basis for your testimony?
A I will draw no (sic) it, yes.
MS. LEUGERS: I would like to make a request to counsel that this memo be produced.
MR. ZAHNLEUTER: Will you request it in writing from me?
MS. LEUGERS: Sure.
Deposition of Langdon Marsh at 6. (hereinaf ter cited ac " Marsh Depo.") Counsel for New York State continued, stating his objections to production of this document, as fol-L lows:
(T MR. ZAHNLEUTER: And I'll consider it, but I'll tell you preliminarily that Mr. Gerstman is an attorney and he has also I
been working with me on a case and that we will probably as-sert attorney / client privilege and attorney / work product.
Marsh Depo. at 7.
In a letter dated March 18,1987, LILCO requested a copy of the " memorandum prepared by Marc Gerstman with the Department of Environmental Conservation (DEC) at the request of Langdon Marsh reviewing portions of the LILCO Emergency Plan." On March 25,1987, counsel for New York State responded, stating that:
Mr. Gerstman, who is an attorney, prepared the analysis of environmentallaws at my direction. The memorandum is protected by attorney-client privilege and attorney work product doctrine. LILCO may request its own attorneys to analyze environmental laws.
LILCO'S request for production of this memorandum is proper under the NRC's Rules of Practice,10 C.F.R. S 2.740. The State of New York should be ordered to pro-duce this document for the reasons stated below.
S.
', II. Discussion At first blush, it may appear that Mr. Gerstman's memorandum is protected under the attorney-client and work product privileges, as New York State asserts, be-cause it contains legal analysis and was prepared by an attorney. A clear understanding of the purpose for which Langdon Marsh is offering testimony, however, reveals that the asserted privileges do not apply. In fact, close scrutiny of Marsh's deposition re-veals that his testimony will concern his interpretation of the applicability of New York State law to activities at the LILCO reception centers, which apparently is the r
same subject matter of Mr. Gerstman's memorandum. Because the substance of Mr.
Marsh's testimony is legal - his interpretation of New York law -it follows that any research done by Mr. Marsh, or anyone else at his direction, in the preparation of his testimony would necessarily involve legal analysis. To protect Mr. Gerstman's memo-randum f rom production merely because it involves legal analysis would be an abuse of both the attorney-client and the work product privileges.
A.
Landgon Marsh's Testimony Will Involve Analysis of New York Law As It Applies to LILCO's Reception Centers In response to the NRC Staff's First Set of Interrogatories and Request to Pro-duce dated March 6,1987, Suffolk County, the State of New York, and the Town of i
Southampton ("Intervenors") stated that:
)
(d)
Langdon Marsh (State of New York) will testify con-cerning the environmental permits required at the re-l ception centers. The basis for his testimony willin-l clude the laws of the State of New York.
. Response of Suffolk County, State of New York and Town of Southampton to the NRC's Staff First Set of Interrogatories And Request To Produce at 3.0 n addition, when I
l l
1/
At no time did New York State indicate the basis for Mr. Marsh's testimony in any response to LILCO's Interrogatories, as the following chronology indicates. On i
f (footnote continued) l l
, asked during his deposition about what issues he would be addressing in this proceeding, Mr. Marsh replied:
A The SPDES issue.
Q That's the S-P-D-E-S7 A
S-P-D-E-S, State Pollution Discharge Elimination Sys-tem, SEQRA, the State Environmental Quality Review Act and low-radioactive waste transport.
Marsh Depo. at 13. Earlier in the deposition, when asked what type of research he planned to do, Mr. Marsh stated:
3 A
Yes. Well, I reviewed the portions of Article XVII and Article VIII [of the Environmental Conservation Law).
Q So you have done legal research into those articles.
A Yes.
Q Do you plan to do any additional research in preparing the testimony?
(footnote continued)
January 16,1987 and February 4,1987, LILCO propounded its first and second sets of interrogatories to Suffolk County and the State of New York. Request Nos.1-8 in both sets of interrogatories sought tne names of all witnesses, the subject matter of their testimony, and any written studies, reports, analyses, or other documents related to re-ception center issues that the witnesses had prepared, or had had prepared. Interve-nors' first response on January 30,1987, stated that at that time, the Governments had not decided who would be their witnesses. On February 13,1987, Suffolk County sup-piemented its response with a list of its witnesses. The State of New York did not join in this supplemental response. On February 20,1987, Suffolk County and the State of New York responded to LILCO's Second Set of Interrogatories stating that the February 13,1987, supplemental response and recent telephone conversations and correspon-dence had already responded to LILCO's request. (By this time New York State had in-formed LILCO during conversations setting up the deposition schedule that Langdon Marsh would testify on state environmentallaw.) At present, LILCO has an outstanding request to the State of New York to supplement and answer Request Nos.1-8 in its First Set of Interrogatories and Request for Production of Documents dated January 16, 1987. S_ee LILCO's Fourth Request for Production of Documents Regarding Reception Centers Directed to New York State, dated March 13,1987. This Fourth Request would also cover LILCO's request for production of this memorandum as well as any other documents, reports, or analyses that Mr. Marsh or any other State witness may rely upon in their testimony.
A I undoubtedly will.
Q And what do you think that will encompass?
A Well, undoubtedly we will look at the regulations more closely and other portions of the statute and perhaps some precedents, additional precedents.
Marsh Depo at 9-10. In response to the question "What will be your testimony in this proceeding?," the witness replied:
A It will cover, as I indicated at the onset, three in-terrelated areas having to do with the jurisdiction of the Department with respect to the activities at the reception centers. One, the application of the State
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Pollutant Elimination System programs, statute and laws, the SEQRA and the low-level radioactive waste transportation.
Q Could you give me a brief statement of what that testi-mony will be?
A It will review the application of these three statutes and regulations to the activities that are described in the plan and review the relevant precedents and regu-lations that relate to our jurisdiction of the matter.
Marsh Depo. at 22-23.
The above passages from Mr. Marsh's deposition and New York State's response l
to the NRC Staff's Interrogatories establish that Mr. Marsh is being offered to provide his legal analysis of New York State law as it applies to proposed activities at LILCO's reception centers. It follows that any reports or memorandum prepared at the request of Mr. Marsh to be used in the formation of his written testimony will consist of an analysis of state law. Such is the case with Mr. Gerstman's memorandum. As the fol-lowing sections demonstrate, Mr. Gerstman's memorandum, because of this f act, cannot be protected by the attorney-client or work product privileges.
I
, B.
Mr. Gerstman's Memorandum Is Not Protected By The Attorney-Client Privilege New York State's claim of attorney-client privilege in this situation is misplaced.
The memorandum Mr. Gerstman prepared for Mr. Marsh does not contain the type of
" legal advice" that is protected by the attorney-client privilege, nor are Mr. Marsh and Mr. Gerstman in an attorney-client relationship for this proceeding. In those cases where the attorney-client privilege has been found to apply, a client has sought advice 0
from an attorney about how the laws affect him; that is, advice about his legal rights or 1
obligations or about the legal consequences of his own conduct. That is not the nature of the relationship between Mr. Gerstman and Mr. Marsh in this case. Rather, the rela-
~
tionship here is that of a superior and a subordinate. Mr. Marsh merely directed Mr.
Gerstman, his subordinate, to provide him with information to permit him to prepare
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his testimony in this case. Because Mr. Marsh's testimony will be in the form of legal conclusions, the information provided to him by Mr. Gerstman is necessarily legal in na-ture. Nonetheless, the information was provided in the regular course of dealing be-tween a superior and en employee.
That the memtrandum in question will be relied on by Mr. Marsh as the basis for the opinions in his testimony underscores the absurdity of the State's position. The memorandum is no different f rom work that provides the basis for an opinion offered by any other expert witness in this proceeding, and LILCO has a right to explore the basis of a witness' testimony. In the present case, Mr. Marsh's testimony will be in the form of legal conclusions. LILCO has the right, therefore, to examine documents he i
has relied on in reaching those conclusions. To deny this motion would manifestly prej-udice LILCO.
Moreover, the purpose of the attorney-client privilege would not be served by withholding the document in question from LILCO. The purpose of the privilege is to encourage " full and frank communication between attorneys and their clients and
... thereby promote broader public interest in the observance of law and admission of jus-tice." Uplohn Co. v. United States, 449 U.S. 383, 389 (1981). Such " full and f rank" com-munications are essential for an attorney to effectively represent a client. If a client felt that discussions he had with an attorney were subject to disclosure, he might be hesitant about fully disclosing necessary ir. formation to his attorney. The attorney-client privilege was created to remove this impediment. No such impediment existed in the Marsh-Gerstman relationship here at issue. The purpose of the memo-randum was not to give legal advice to Mr. Marsh but to provide the legal analysis on which he could base the substance of his testimony, and the issues analyzed by Mr.
Gerstman did not concern the legal status of either Mr. Marsh or his agency, so there was no incentive for Mr. Marsh to withhold information. Accordingly, production of the Gerstman document would violate neither the letter nor the spirit of the attorney-cilent privilege.2/
2/
The Revised Uniform Rules of Evidence (1974), at page 502, establish an addi-tional reason why the attorney-client privilege does not apply here. Rule 502 provides:
(d)
Exceptions. There is no privilege under this rule:
i l
(6)
Public Officer or Agencv. As to a communication be-tween a public offleer or agency and its lawyers un-less the communication concerns a pending investiga-tion, claim, or action and the court determines that disclosure will seriously impair the ability of the pub-lie officer or agency to process the claim or conduct l
a pending investigation, litigation, or proceeding in t
l the public interest.
The communication between Mr. Marsh, a public officer, and Mr. Gerstman, an attorney, did not involve any investigation, claim or action by the Department of Envi-ronmental Conservation. Rather, the Gerstman memorandum was prepared for and concerns testimony Mr. Marsh will give in the present litigation.
l
.. C.
The Gerstman Memorandum Is Not Protected By The Work Product Doctrine At this time LILCO cannot dispute the claim that the Gerstman memorandum is work product.3/ However, it does not appear that it is of the special class of opinion work product that protects the mentalimpressions or strategies of the attorney prose-cuting or defending the claim. Rather, the memorandum at most can be classified as ordinary work product which is discoverable.
According to 10 C.F.R. S' 2.740(6)(2), a party may discover work product upon a showing that the party seeking discovery has substan-I*
tial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the sub-stantial equivalent of the materials by other means.
Such a showing of substantial need can be made in this case.
As stated above in footnote 1, New York State did not respond to LILCO inter-rogatories seeking the name of witnesses and the subject matter of their intended testi-4 many. Rather, at some point prior to scheduling witnesses for depositions, New York State informed LILCO that Langdon Marsh would provide testimony on state environ-mental law. In preparing for Mr. Marsh's deposition, counsel for LILCO reviewed New York Environmental Conservation Laws! and his prior testimony given in 1984 concern-ing SPDES permits and SEQRA. Upon discovering during the deposition that Mr.
Marsh's testimony on environmental law included state law on " low level radioactive waste transport," LILCO requested that a copy of the statute be produced so that l
l 3/
As a matter of f act, it is unclear exactly what the memorandum is, since Mr.
Marsh says it analyzes the LILCO Plan and New York State claims it is an analysis of the state environmental laws.
3/
The Environmental Conservation Law (ECL) comprises three volumes of McKinney's Consolidated Laws of New York for a total of 2,091 pages. It was impossi-ble for LILCO to be prepared to depse Mr. Marsh on each and every part of the ECL based upon New York State's general response to LILCO's inquiry into the subject mat-I ter of Mr. Marsh's testimony.
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. LILCO could conduct a more thorough deposition. Although the statute was within their immediate control, New York State refused. (See Attachment I to this motion for the text of Marsh's deposition discussing production of this statute.) Forced to continue the deposition without access to the relevant statute and related regulations LILCO reserved its right, over New York State's objection,to recall the witness if LILCO felt it had not been able adequately to depose the witness. Because of New York State's fall-ure to provide LILCO a more specific answer as to the subject matter of Mr. Marsh's testimony and because of its obstructive behavior during Mr. Marsh's testimony, LILCO is in substantial need of the Gerstman memorandum to analyze the issues presented by Mr. Marsh and to explore the basis of his testimony in this proceeding.
In any event, once the State's written testimony is filed, and if Mr. Marsh does
" draw on" the Gerstman document as he has indicated he will, then LILCO is entitled to see the document. Without the memorandum, LILCO will be hampered in cross-examining Mr. Marsh to explore the grounds for his opinions. See Federal Rules of Civil Procedure 26(b)(4).
II. Conclusion For the reasons stated above, the Board should order the State to produce the Gerstman memorandum.
I i
l In addition, Mr. Marsh indicated during his deposition that emergency regulations i
g/
had recently been adopted concerning the low level radioactive water transport.
LILCO did not have access to these regulations during the deposition. New York State did not produced these regulations until March 25,1987.
1 l
Respectfully submitted, Y'1444
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Jagies tman
//
Stdph iller
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Mary Leugers Hunton & Williams 707 East Main Street P.O. Box 1535 h
Richmond, Virginia 23212 l
i DATED: April 3,1987 e
LILCO, April 3 1987 f**
0 80CKETED USNRC CERTIFICATE OF SERVICE 57 APR 10 All:15 In the Matter of
[0c F
y LONG ISLAND LIGHTING COMPANY BRANCH (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of Lilco's Motion To Compel State of New York To Produce Document were served this date upon the following by telecopier as indicated-
)
5 by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail,
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postage prepaid.
Morton B. Margulies, Chairman **
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel
[
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy.
Richard G. Bachmann, Esq. **
Bethesda, MD 20814 George E. Johnson, Esq.
U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline **
7735 Old Georgetown Road Atomic Safety and Licensing (to mailroom)
Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 Herbert H. Brown, Faq. **
4350 East-West Hwy.
Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Karla J. Letsche, Esq.
Kirkpatrick & Lockhart Mr. Frederick J. Shon **
South Lobby - 9th Floor Atomic Safety and Licensing 1800 M Street, N.W.
Board Washington, D.C. 20036-5891 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino, Esq.
- 4350 East-West Hwy.
Richard J. Zahnleuter, Esq.
Bethesda, MD 20814 Special counsel to the Governor Executive Chamber Secretary of the Commission Room 229 Attention Docketing and Service State Capitol Section Albany, New York 12224 U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Mary Gundrum, Esq.
Washington, D.C. 20555 Assistant Attorney General 120 Broadway l
Atomic Safety and Licensing Third Floor, Room 3-116 Appeal Board Panel New York, New York 10271 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
, Spence W. Perry, Esq. **
Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition 195 East Main Street Agency 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
counsel to the Governor Mr. Jay Dunkleberger New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223
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Martin Bradley Ashare, Esq. **
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building Veterans Memorial Highway P.O. Box 298 Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee P.O. Box 231 Agency 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of i
Public Service, Staff counsel Three Rockefeller Plaza i
Albany, New York 12223 l' / M
$/Af)/v t
James N.thtistman/ f/
Stepheg N.-Miller /
y Mary Jo Leugers I
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: April 3,1987
ATTACHMENT 1 51 950 01 01 marycimons 1 reception centers might be used would trigger the need for 2
this whole process to determine if the permit was needed 3
and to get a permit if it is determined that it's needed?
4 A
That's our current thinking, yes.
5 0
Now I would like to turn to one of the two areas 6
you thought might require a permit, and the first I would 7
like to talk about is the low-level radiation transport.
What section of New York's Code concerns low-8 9
level radiation transport?
10 A
I don't recall the exact section.
There was a chapter law passed in 1986 that requires manifests for the 11
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12 transport of low-level radioactive waste.
13 0
What is a manifest?
It's a document which is prepared by the 14 A
15 shipper, given to the transporter and given up to the
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ultimate recipient.
16 i
17 0
Do you know roughly what section in the Code f
i 18 that concerns?
19 A
If I may consult with counsel.
20 0
Please.
I don't recall it exactly and maybe we can give 21 A
22 it to you.
ACE FEDERAL REPORTERS, INC.
[
202 347-3700 Nationwide Coverage 800 336-6646
52 950 01 01 MS. LEUGERS:
Yes, please.
If you would have mqryaimons 1 access to it in your office or whatever, I would appreciate 2
3 having a copy of it also.
I didn't come prepared for that 4
one.
5 MR. ZAHNLEUTER:
Do you know what the section 6
is?
7 THE WITNESS:
No.
8 (Counsel confer.)
9 MS. LEUGERS:
We can take a short break while i
10 you go look for it.
11 (Short recess taken.)
[
12 MS. LEUGERS:
Did you get a copy of the 13 statutes?
r 14 MR. ZAHNLEUTER:
We didn't get a copy, but we will tell you that the pertinent statute is Article 27 15 16 Title III of the Environmental Conservation Law.
17 MS. LEUGERS:
What was it again?
18 MR. ZAHNLEUTER:
Article 27, Title III.
19 MS. LEUGERS:
Is there a problem with getting a 20 copy of it at this time?
I mean if you have access ---
l 21 MR. ZAHNLEUTER:
There is no problem, except we are under no obligation to provide you with the statutes.
22 l
ACE. FEDERAL REPORTERS, INC.
I l
202-347-3700 Nationwide Coverage 800-336 66 4
53 950 01 01 marycimons 1 MS. LEUGERS:
That's correct, except at this 2
point -- that would be correct if I were asking you for an 3
interrogatory and wanted a copy of it, but at this point it 4
is within your control that you can bring it to the deposition and it would make this deposition a lot easier 5
6 to go through if I have access to the code sections that 7
I'm going to be deposing the witness on.
8 MR. 2AHNLEUTER:
Well, likewise, you also had access to that statute and could have brought that with 9
We are under no obligation to provide you with 10 you.
materials that you need to prepare for your deposition.
11 12 MS. LEUGERS:
Well, if counsel will remember, in interrogatories we have propounded to you at several times 13 14 we asked exactly what the witness would be testifying on.
L 15 Our interrogatories were never answered in that respect.
There were interrogatories to the NRC staff 16 I
where you listed environmental laws and other State and
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17 So to 18 local laws, but you never specified which ones.
assume that I will have access to everything at this point l
19 is I think unreasonable, and I don't think it should be 20 that much of a problem to at this point Xerox the pertinent 21 parts of this section so we can continue with the 22 l
ACE FEDERAL REPORTERS, INC-202 347-3700 Nationwide Coverage 80 4 336 6646 L
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54
.950 01 01
'ccrycimons 1 deposition.
2 MR. ZAHNLEUTER:
Well, the point is the State of 3
New York is under no obligation to provide you with a copy 4
of a statute.
5 MS. LEUGERS:
So that's your position at this 6
point?
7 MR. CASE:
Can we go off the record a minute?
I 8
MS. LEUGERS:
Yes.
9 (Discussion off the record.)
10 MR. ZAHNLEUTER:
Let's see how far we can 11 proceed without the statute.
I suggest that you ask Mr.
12 Marsh what his knowle'dge of the statute is and let's see 13 what his answers are.
14 MS. LEUGERS:
I will go ahead and proceed and 15 ask questions on the statutes concerning the low-level l
l 16 radiation transport under the understanding that if later on once I have a chance to review the statutes, since I'm 17 18 not able to review them at thi6.ibr*, that we may have to 19 continue this deposition and ask further questions on that i
20 statute.
21 MR. 2AHNLEUTER:
Well, I would object to you 22 continuing this deposition because you failed to bring a ACE FEDERAL REPORTERS, INC.
L 202-347 3700 Nationwide Coverage 800-336-6646 L
55 950 01 01 I mean we're coryaimons 1 pertinent statute with you to the deposition.
We're talking 2
not talking about a confidential document.
about the text of a statute which is easily obtainable by 3
4 anyone.
5 MS. LEUGERS:
And as I'll remind counsel, he never specified that this was a statute that the witness 6
7 would be testifying on.
As a matter of fact, he never responded to our interrogatories as to specifically what 8
9 this witness would be testifying on.
But I will continue 10 and ask the questions that I am able to ask about the 11 statute.
~12 BY MS. LEUGERS:
So the low-level radiation transport section of 13 0
the code is Article 27, Title III of the Environmental 14 15 Conservation Law; is that correct?
16 A
That's right.
(
What is the title of that section?
17 0
Well, the article has to do with the regulation 18 A
of solid and hazardous wastes, and that section I believe 19 deals specifically with the transportation of low-level 20 21 radioactive waste.
How do you define low-level radioactive waste?
22 0
ACE FEDERAL REPORTERS, INC.
202 347-3700 Nationwide Coverage 800 336-6646,
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