ML20207J404
| ML20207J404 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/06/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#187-2183 OL-5, NUDOCS 8701080433 | |
| Download: ML20207J404 (94) | |
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UNHED STATES NUCLEAR REGULATORY COMMISSION ORlGWAL
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DOCKET NG: 5 0 -3 22-OL-5 LONG ISLAND LIGliTING COMPANY (Shoreham Nuclear Power Statien, Unit 1)
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CONFERENCE OF COUNSEL q
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1 UNITED STATES OF AMERICA g
2 NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
- - - - - - - - - - - - - - - - - -x In the Matter of:
5 LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-5 6
(Shoreham Nuclear Power Station, 7
Unit 1) i 8
- - - - - - - - - - - - - - - - - -x 9
Nuclear Regulatory Commission 10 Fifth Floor llearing Room 4350 East-West Highway gg Bethesda, Maryland 12 Tuesday, January 6, 1987
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13 The conference of counsel in the above-entitled matter 14 convened at 2:30 p.m.
15 16 BEFORE:
JUDGE JO!!N !!. FRYE, III, Chairman 77 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission g
Washington, D. C.
20555 19 JUDGE OSCAR 11. PARIS, Member Atomic Safety and Licensing Board 20 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 21 JUDGE FREDERICK J. silon, Member 22 Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission 23 Washington, D. C.
20555 24 pJ 2s !
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1 APPEARANCES:
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On behalf'of the Applicant:
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. IRWIN, ESQ.
DONALD P.3 y
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KATHY E.
B.'McCLESKEY, ESQ.
Hunton &' Williams 707 East Main Street i
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On behalf of Suffolk, County:
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'8 LAWRENCE COE LANPHER,,ESQ.
KARLA J.
LETSCHE, ESQ.'.
9 MICHAEL S. MILLER, ESQ.
Kirkpatrick & Lockhart l
10 South Lobby, Ninth FEcor 1800 M Street, N.W.
Washington, D.
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20G's6-58911' 1y s
12 On behalf of FEMA:
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(g 13 WILLIAM R."CUMMING, ESQ.
Federal Emergency Management
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C.
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^ iQ On behalf of State of New York:
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RICHARD J. 'ZAHNLEUTER, ESQ.
77 Deputy Special Counsel to
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the Governor I
Executive Chdmb'er Capitol, Room 229 19 Albany, New York 12224 20
- i On behalf of the Nuclear Regulatory 21 l Commission Staff
0 3
s a 22 l BERNARD BORDENICK, ESQ.
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EDWIN J.
REIS, ESQ.
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23 ORESTE PIRFO, ESQ.
U.S. Nuclear Regulatory 3
Commission 24 g
Washington, D.
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PROCEEDINGS 2
(2:35 p.m.)
3 JUDGE FRYE:
Could we go on the record, please?
4 This is a conference of counsel that was called 5
at the suggestion of counsel for LILCO.
6 Mr. Irwin, why don't we begin by asking the 7
parties to identify themselves for the record, starting with 8
staff.
9 MR. BORDENICK:
Good afternoon, members of the 10 board.
My name is Bernard M.
Bordenick.
I'm with the 11 Office of the General Counsel, the U.S.
Nuclear Regulatory 12 Commission, Washington, D.
C.
(~/')
13 On my right is Edwin J.
Reis of that same office.
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14 On his right is Oreste R. Pirfo, same office.
15 JUDGE FRYE:
Thank you.
16 MR. CUMMING:
Judge Frye, my name is William 17 R.
Cumming.
I'm the general counsel of the Federal 18 Emergency Management Agency.
I'm representing the Federal l
19 Emergency Agency in this proceeding.
20 MR, IRWIN:
Judge Frye, Members of the Board, my 21 name is Donald v. Irwin, of the firm of Hunton and Williams, 22 representing the applicant, Long Island Lighting Company.
23 With me to my right, also representing Long t
24 Island Lighting Company, is Kathy E.
B.
McCleskey, also of
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JUDGE FRYE:
Thank you.
i 2
MR. ZAHNLEUTER:
My name is Richard 3
J.
Zahnleuter.
I'm the Deputy Special Counsel to the 4
Governor.
I represent Governor Cuomo and the State of New 5
York.
6 MS. LETSCHE:
My name is Carla Day Letsche, with 7
the law firm of Patrick and Lockheart.
With me are 8
Mr. Lawrence Lampher and Mr. Michael S. Miller, also of that 9l law firm.
We represent Suffolk County in this proceeding.
10 JUDGE FRYE:
You are not representing the 11 Southampton for purposes of this conference?
12 MR. LAMPHER:
I spoke with Mr. Layton's office p)
('-
13 this morning; they informed me they were not going to be 14 present.
We're authorized to speak on their behalf.
15 JUDGE FRYE:
Thank you very much.
16 Mr. Cumming, the young lady to your left is with 17 FEMA?
18 VOICE:
OGC.
19 MR. BORDENICK:
Of NRC.
20 i JUDGE FRYE:
Thank you very much.
l 21 f Mr. Irwin filed a proposed agenda for the 22 '
conference.
Has overyone had an opportunity to see that?
i 23 '
If so, do you have any problems with following l
24 h it generally?
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(No response.)
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MR. CUMMING:
I haven't seen it, Judge Frye.
2 But, assuming it's comprehensive, I have no objection.
3 JUDGE FRYE:
It seems to be comprehensive.
Of 4
course, if there's something that's left out, feel free to 5
bring it up.
6 The first topic is witness designations.
And I 7
would take it from this it's a question of when are all the e
8 witness' going to be known, is the thought behind this.
9 Am I correct?
10 MR. IRWIN:
That's correct, Judge Frye.
l 11 Maybe I should say something preliminarily 12 because I'm the guy who asked for this conference.
And I'm r+
13 grateful to the Board and all the parties for getting
+
14 together.
15 I asked for the conference because I saw a lot of 16 problems potentially feeding into one another about 10 days 17 ago.
I think the papers that have been filed in the past 10 18 days have helped clarify parties' positions and, quite i
19 frankly, have helped me feel more comfortable about some 20 l paths towards solutions of them -- with respect both to 21 completion of discovery and with respect to scheduling.
22 I think it would be useful to follow the agenda, 23 so I'm not going to make any long speeches.
I think the 24 parties have their disagreements, but I think we also have
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25 seen some paths.
I think it would be useful to follow the ACE-FEDERAL REPORTERS, INC.
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agenda for a while, but it may be that we can sort leap 2
ahead as we go.
3 JUDGE FRYE:
The Board's perception was that, 4
independently of your suggesting the conference, that it 5
would be a good idea to have one to see where we stand, and 6
what needs to be done to chart the course for the remainder 7
of the prehearing proceedings.
8 MR. CUMMING:
Just so the record is clear, Judge 9
Frye, FEMA requested a conference on December 19th.
10 JUDGE FRYE:
Oh, you did.
I'm aorry.
You 11 certainly did.
12 MR. IRWIN:
I guess it was my ball on witness 13 designations.
As of the present time, LILCO has designated 14 all of the witnesses it intends to designate but for those 15 witnesses whom we feel we may have to designate to be 16 responsive to witnesses designated in recent weeks by 17 Suffolk County, whom we have (a) never seen before in this 18 proceeding; and (b) not yet deposed.
19 That category of witnesses includes -- there's 20 {
one additional witness we'll come back to -- that category 21 of witnesses includes Ford Rowen, whom we deposed this 22 moraing.
We do believe we will need to designate a witness i
23 !
in response to him, a witness named Elizabeth Loftus.
24 A third witness for Suffolk County, his last name 25 "
is Zook.
I don't know his first name.
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has indicated that they may have a fourth witness, a final 2
witness yet to designate.
3 LILCO will also be designating one witness in all 4
probability to be responsive to a recently-designated 5
Suffolk County witness named Perot, who was deposed late in 6]
December.
We expect to have that witness identified within l
7 l
the next day or so.
e 84 So the long and short of it is in concept the 9.
only witnesses left for LILCO to designate are those h
10 {
responsive to recently-designated suffolk County witnesses.
11 We do not anticipate there being more than five such 12 additional witnesses.
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13 There may be as a separate category some New York 14 State employees whom we may wish to depose as soon as New d
15 l York State as complied with the Board's order to make s
16 discovery to LILCO on its outstanding interrogatories.
17 f JUDGE FRYE:
That, I take it, might lead to the 18 l possibility that you would have more witnesses to designate?
19 !
MR. IRWIN:
I don't believe so, Judge Frye.
We 20 l have, I believe, already chosen those people whom we expect Il 21 j to be knowledgeable about comparative exercise analysis.
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And what we need right now is the information to analyze l
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it.
24 l JUDGE FRYE:
Do we go to the State or to the O
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i 25 i County first?
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MR. ZAHNLEUTER:
The County can go first.
That's 2
the way it's usually been done.
3 JUDGE FRYE:
All right.
Let's see.
I have to 4
say I'm a little surprised at what I just heard Mr. Irwin 5
say, since I thought the idea of a cutoff of witness 6
identification was his during the last conference.
7 The County has indicated that there is one 8
potential witness with whom we are in contact, and do at 9
this point intend to designate once the contracting 10 procedures have been completed and we are given the go ahead 11 to identify that person.
And we have indicated that that 12 person is likely to testify concerning contentions 38 and
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13 39, 14 In light of the Board's cutoff of witness 15 designation, we had assumed that would be the end of it, 16 since it sounds like there are going to be five additional 17 LILCO witnesses.
We don't have any idea who they are.
18 I suppose there is certainly a possibility that 19 when we learn of them and depose them, there may be some 20 need to designate additional witnesses.
I would just like 21 to reserve the right to do that, depending upon what else 22 happens in the future.
I 23 But, as of now, as we said before the cutoff 24 date, the County intends to identify one additional O
25 witness.
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MR. ZAHNLEUTER:
The State of New York has no 2
present intentions to identify any witnesses, but still 3
would reserve the right to designate new ones in response to 4
the ones that have not been designated yet by other 5
parties.
6h JUDGE FRYE:
Did I understand you correctly?
You 7
had designated witnesses.
8 MR. ZAHNLEUTER:
Yes.
We have designated Frank 9
Petrone.
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JUDGE FRYE:
But no witnesses other than that?
11 MR. ZAHNLEUTER:
That's correct.
12 JUDGE FRYE:
While I'm on that, I was a bit
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13 puzzled.
The contentions were filed jointly, were they not?
14 The State, County and City filed them jointly?
15 MS. LETSCHE:
That's correct.
16 JUDGE FRYE:
Yet, the State is sponsoring 17 Mr. Petone and I gather the County and City are not.
I 18 :
Is that correct?
l 19 MR. ZAHNLEUTER:
That's correct.
20 "
JUDGE FRYE:
I don't know whether the same is 21 i true for County witnesses.
The County is sponsoring
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22 l witnesses that the State and City are not.
i 23 a MS. LETSCHE:
The State and Town, that's il 24 3 correct.
(~3 25 JUDGE FRYE:
That's consistent with what's been i
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happening for the past five years in this proceeding.
There 2
have been instances where -- in fact, there have been many, 3
many instances, particularly prior to the State becoming 4
actively involved, when Suffolk County sponsored witnesses, 5
there have been instances where both the County and the 6
State have sponsored witnesses on a particular contention.
7 And there have been instances, I believe, where 8
the State alone has sponsored witnesses.
So it's consistent 9
with the way we have done it in the past.
10 JUDGE FRYE:
Do you file separate proposed 11 findings?
Or do you file joint proposed findings?
hl MS. LETSCHE:
I think, for convenience, we have 12
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13 filed joint proposed findings in the past.
14 JUDGE FRYE:
Has there ever been a time in the 15 past when the State, Ccunty and Town have not seen eye to r-eye on a particular issue?
l MS. LETSCHE:
I would really have to think about l#1 i
18 that.
There certainly have been instances where there have 19 l been issues pertaining just to one and not to the other in 20 which there have been differing responses or responses n
21 required by one but not the other.
22 I would really have to think about what's been 23 l going on for the past five years to answer your question 3
24 i accurately.
I can't do it off the top of my head.
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MR. ZAHNLEUTER:
There also have been times when
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the State and County have sponsored witnesses on the'same 2
contention and the witnesses have offered different 3
perspectives on the same contention.
4 MR. IRWIN:
Judge Frye, can I add briefly to 5
that?
I cannot disagree with Ms. Letsche, but my 6
recollection -- and I'm pretty sure it's correct -- is that 7
there has never been an issue or even an issue within an 8
issue on which the State, one or more of the State, County 9
and Town participating have disagreed with one another.
10 And while LILCO does not disagree in concept with 11 separate sponsorship of witnesses, we do worry about the 12 possibility of redundant presentations, cumulative 4
d 13 questioning and what I will, for lack of a better term, call 14 friendly rehabilitation in the guise of cross-examination 15 from parties aligned with one another who, in fact, are 16 participating jointly.
17 In other words, if Suffolk County presents a 18 witness and LILCO cross-examines that witness, New York 19 State could then conceivably, quote, " cross-examine" that 20 witness on areas not necessarily limited to the scope of 21 LILCO's questions, but designed to elicit friendly answers.
I 22 l That has occurred in the past, and we are worried l
23 l about confusion of the proceeding from that kind of I
24 problem.
O 25 JUDGE FRYE:
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been allowed of nonadverse witnesses.
2 MR. IRWIN:
Occasionally, and LILCO has had to 3
object to it and attempts to cut it off.
That's correct.
4 MR. ZAHNLEUTER:
I might add that the practice 5
has been as applicable to FEMA and the NRC staff as it has 6
been to intervenors.
7 MR. IRWIN:
I'm not sure that I would agree with 8
Mr. Zahnleuter's recollection on that, Judge Frye.
9 What has occurred in the past, however, it is not 10 a good practice in LILCO's view, and LILCO would like 11 at whatever point the Board deems appropriate to suggest 12 that we organize procedures to prevent the kind of i
13 individual sponsorship of testimony leading to a disorderly 14 round robbin.
15 JUDGE FRYE:
I suspect it's probably best dealt 16 with when it happens.
We'll get your thoughts in a moment, 17 Mr. Bordenick.
18 But it would also seem to me as a general 19 proposition that if you're not adverse to the witness, you l
20 ;
have no business cross-examining him.
21 MR. IRWIN:
That's intuitively correct.
22 JUDGE FRYE:
Mr. Bordenick.
23 MR. BORDENICK:
I would say that, in the past --
24 I,
of course, don't have 100 percent total recall on O
25 everything that's happened in this proceeding.
I think it i
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would be physically impossible -- but I don't think there's 2
been a problem with people designating witnesses per se.
3 My recollection is substantially similar to 4
Mr. Irwin's.
There were cases where the State attempted to 5
cross-examine a County witness in areas beyond the scope of 6
the witness' testimony.
I did want to specifically state, 70 to my recollection, there was no occasion when all the 8i cross-examination previously, in the emergency planning 9
phase of this proceeding, County, State or local witnesses 10 was done by the NRC, not by FEMA.
11 I don't know that that's going to be the case in 12 the future, but that was the case in the past.
The NRC did 13 not attempt to cross-examine any FEMA witness, nor did FEMA 14 seek to cross-examine any NRC witness.
And there were some 15 NRC witnesses.
A few.
I 16 Most of the testimony for the government, the 17 !
U.S. government, was given by PEMA.
18 JUDGE FRYE:
In essence, the FEMA witness, under 19 the memorandum of understanding, is an NRC witness.
20 ;
MR. BORDENICK:
Essentially.
I I
21 !
JUDGE FRYE:
Essentially, yes.
22 MS. LETSCHE:
Judge Frye, if I could just make 23 h one comment.
I think you're right that this whole 24 [
discussion is premature at this point, and we should
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probably wait and see what develops and if in fact there is l
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any problem.
2 But I should just note for your information, 3
since you don't have the history that some of us have with 4
this proceeding, that, in the past, there has regularly been 5
what I would characterize as friendly cross-examination when 6
there aren't adverse interests of LILCO witnesses by staff 7
counsel and of staff witnesses by LILCO counsel.
8 Their interests are clearly aligned in this 9
proceeding and I think that needs to be kept in line, too, 10 if there are going to be separate rules made for interests 11 that may be aligned on the other side of the table.
12 But, basically, I think the discussion is sort of pd 13 premature at this point.
14 JUDGE FRYE:
Perhaps one way to deal with this 15 potential _ problem is through cross-examination plans, too.
16 I gather, at this point, there are no staff 17 witnesses, unless, potentially, the two individuals --
18 Mr. Weiss, and I've forgotten the other name --
19 MR. BORDENICK:
You are correct.
The staff has 20 not designated any witnesses for this hearing at the present 21 time.
We do not intend to designate any witnesses, 22 I including Messrs. Schwartz and Weiss.
23 i MR. CUMMING:
Judge Frye, with respect to FEMA, 24 in September, we designated Messrs. Phillip McIntyre, Joe n
25 Keller, Carl Baldwin, Richard Donovan.
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this morning that there is a tentative settlement reached 2
between the agency and Mr. Roger Koeski.
And on that basis, 3
I wish to inform the Board and all parties that FEMA will 4
present a panel of Roger Koeski, Tom Baldwin, Joe Keller and 5
formally withdraw as witnesses, Richard Donovan, Phillip 6
McIntye, and Eor Husar.
7 FEMA, however, has no objectionc to those 8
individuals being deposed separately should the Intervenors 9
or Applicants so wish.
10 There is a scheduling problem with McIntyre, but 11 those in fact have remained.
Those in fact are the 12 designated witnesses.
/
13 JUDGE FRYE:
The designated witnesses are now 14 Koeski, Baldwin, Keller?
15 MR. CUMMING:
And that's it.
16 JUDGE FRYE:
That's it.
Only three.
And 17 McIntyre, Donovan.
18 MR. CUMMING:
Donovan and Eor Husar are 19 withdrawn.
20 l JUDGE FRYE:
All right.
Now, where do we stand 21 !
on depositions as of this point in time?
22 1
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MR. BORDENICK:
Judge Prye, could I interject one 2
thing?
3 I didn't know we were leaving the first item on 4
Mr. Irwin's agenda on witness designations.
5 As far as the Staff was concerned, there was a 6
cutoff date for witness designations.
Apparently, that has 7
slipped, as we did on, I believe, December 4, which is when 8
we were here before the Board as a conference of counsel.
9 Staff continues to urge strongly that the Board 10 set a cutof f date for the designation of witnesses.
(~'
11 Otherwise, it begins to feed on itself, as apparently it did b
12 between December 4 th and up until today, apparently.
13 MR. IRWIN:
Judge Frye, Mr. Bordonick makes a 14 valid point.
15 All I can suggest is with the exception of a 16 couple of people who were designated right around Christmas, 17 the only people LILCO has yet to designate, if any,.are 4
18 people who were designated late in the period by Suffolk 19 County.
We see no choice but to try to keep our option to 20 counter these witnesses, with whom we have no experience 21 previously, all of whom are non-County employees, they are 22 all outside experts.
{}
23 I don't see the logic in taking it one step 24 further, as Ms. Letsche suggested.
After all, it is the 25 County's late designated witnesses whom LILCO is simply ACE-FEDERAL REPORTERS, INC.
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I trying to offset, and we could keep going on this cycle 2
forever.
3 If the County wishes to withdraw its la te 4
designated witnesses, we will withdraw any opportunity to 5
propose counter witnesses.
6 But I agree in principle with Mr. Bordenick, and 7
I am prepared to agree to a cutoff, say something like seven 8
days following the deposition of any one of these witnesses, 9
and ask the Board to enjoin all parties to move the 10 depositions of these outside witnesses up to as early a 11 point as possible.
12 One of the dif ficulties we have had has been 13 scheduling depositions of some of these witnesses.
I am not 14 suggesting that there is anything but legitimate 15
-complication in it, but there is legitimate complication as 16 to some of them.
17 We do need to know what they may say in order to i
18 know whether we have to designate additional witnesses, but 19 with that caveat, I agree 100 percent with Mr. Bordenick's 20 point, and we would be happy to live with the time cutoff.
21 JUDGE FRYE:
There is going to be one time cutoff 22 for everybody.
I don' t know quite how all this is going to 4
(}
23 sort out, since we are on time cutoff.
Perhaps we should 24 take that up.
I thought we had one on the 24 th, and that 25 apparently has not held up, although I will have to say I ACE-FEDERAL REPORTERS, INC.
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thought that was optimisticd when we set it.
2 Do you want to key it to the completion of the 3
depositions of these witnesses -- Rowen, Loftus, Zook, and 4
one other?
5 MR. IRWIN:
Yes, sir.
With the exception of 6
witnesses responsive to them, there is nobody conceivable we 7
could need to designate.
We may not even need to designate 8
anybody responsive to them, but they are outside experts, 9
with whom we have no familiarity before this proceeding.
10 They may bring new disciplines, new areas of knowledge to r^s 11 bear.
I just can't at this point forego the ability to try b
12 to meet that.
13 JUDGE FRYE:
Ms. Letsche is going to say 14 undoubtedly that she wants to depose your witnesses, if any, 15 and withhold her ability to designate witnesses to respond 16 to them.
17 MR. IRWIN:
My answer to that is frankly they are 18 the County's contentions.
They were filed last summer.
19 Most of these witnesses were not described to us until after 20 November.
I see no need to retread that fairly char-ridden 21 ground.
22 The fact remains they could have designated their (D
N 23 witnesses a long time ago, and we could have gotten this 24 process underway a long time ago.
We are simply responding 25 to witnesses whose existence we have only recently become ACE-FEDERAL REPORTERS, INC.
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aware of.
2 We can look at the contentions and say, we think 3
we know what is going on.
4 But, for instance, we deposed a news man named 5
Ford Rowen this morning, who says he has covered 20 6
disasters or 12 disasters in 20 years of experience.
He 7
hasn' t begun his testimony preparation yet, but he is a 8
former broadcast and print journalist, he has taugh t 9
jouranlism.
This fellow, if he has admissible testimony, is 10 a potentially formidable witness.
There may be other
~~
11 such.
(s v
12 But we didn' t even know of Mr. Rowen's existence 13 a month ago, notwithstanding the fact that contentions were 14 filed last summer.
That is our problem, and if they want to 15 withdraw him as a witness, we will withdraw the option to 16 sponsor an expert on how you run on an ENC.
17 But it seems to me we didn't cause the problem, 18 and I think the symmetry is that they get to designate their 19 late expert, they have done it, we have to have the 20 opportunity to counter.
21 MS. LETSCHE:
Judge Frye, I am sorry.
I really 22 don' t like to get into this kind of "Who struck John" kind 23 of discussion, but there have been too many things said in (a~]
24 that last little speech to let them go.
25 We did not designate anyone late.
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witnesses, with the exception of one, whom we described and 2
by the law by which we are bound were not allowed to 3
disclose his name yet, everyone was disclosed prior to 4
cutoff date.
5 Mr. Rowen was identified.
I don' t have the 6
da te.
But sometime in early December.
And his resume was 7
provided at that time.
We said he was a broadcaster.
We 8
said things he had covered.
It indicated he had taught 9
journalism and all those things which Mr. Irwin just 10 suggested.
,r '
11 I think you are absolutely right.
I mean, one C
12 rule here has to go for all sets of parties.
13 LILCO has had access to the contentions for as 14 long as we have.
They knew when they were admitted the same 15 time we knew they were admitted.
16 No one is going to go out and retain experts 17 until you know you are going to be litigating something, and 18 the fact that we started identifying witnesses in November I 19 think is fairly quick, since your ruling didn' t come out 20 until the middle of October.
21 They have had as much time as we have to identify 22 witnesses, and I think you have got to make a rule and f'N 23 everyone has to stick with it, and this idea that we J
24 complied and LILCO now gets to identify another five but we 25 aren't allowed to identify any more just isn't right.
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So I think we have just got to have a little bit-2 of fairness and reasonableness here, and if we are going to 1
3 have a cutoff date everyone sticks to it.
4 MR. IRWIN:
I agree with Ms. Letsche in 5
principle, Judge Frye, but the f act of the matter is it 6
turns out that it is the lawyers who wrote the contentions.
7 The witnesses weren' t selected until sometime later.
8 And when I say " late designated," I don't mean 9
out of compliance.with the cutoff.
What I mean is tha t 10' until one knows what an expert with whom one has no previous w
11 familiarity is going to say we don' t know how to deal with (J
12 him.
13 We have in excess of 20 witnesses to be deposed 14 all told, and about half.of them are Suffolk County 15 witnesses, and we have experience with most of them.
We 16 don't need to designate anybody new to deal with them.
17 Although we haven' t deposed them on any specific items 18 because we know enough about them, we feel we know their 19 frames of reference.
20 I just can't predict what an expert whom we have I
21 never deposed is going to say.
22 As I say, if Suffolk County wishes to withdraw c
23 them, we will withdraw our right to designate counter
(}
l 24 witnesses.
We are merely responding.
We are not taking the 25 offensive on this.
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MS. LETSCHE:
Let me just note for the record, 2
Mr. Irwin, that there have been four identified and you have 3
'just said there might be five more witnesses that we have 4
never heard of either.
We don' t know what they are going to 5
say or what their expertise is.
6 We are in exactly the same position you are.
7 JUDGE FRYE:
Let's get to the deposition 8
schedule.
9 Where do we stand on depositions?
What remains 10 to be done?
11 Maybe the best way to do that is to have 12 reference to a letter -- one of the letters, I suppose the 13 most recent letter that set out the schedule.
14 MS. LETSCHE:
The attachment to the letter which 15 we filed yesterday, Judge Frye, Appendix A --
16 JUDGE FRYE:
Did you telecopy it here?
17 MS. LETSCHE:
Yes, I think we telecopied that to 18 you.
19 There are some inaccuracies because there have 20 been some jugglings around already since the date of this 21 letter.
22 But that indicates --
(}
23 MR. CUMMING:
Excuse me, Judge Frye, but I don't 24 believe that either NRC or FEMA has the filing of 25 yesterday.
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MR. PIRFO:
The letter of January 2nd, is that 2
what you are referring to?
3 MS. LETSCHE:
We filed a response to LILCO's 4
motion.
5 MR. PIRFO:
We just got it on the way over here.
6 JUDGE SHON:
I believe that the appendix to that 7
motion is identical to Kirkpatrick & Lockhart's letter of 8
December 22nd.
9 MS. LETGCHE:
That is true, it is.
10 MR. BORDENICK:
We, being the Staff, have the 11 filing that Ms. Letsche referred to.
We have th a t.
We only 12 received it several hours ago and really haven' t had a 13 chance to digest it.
I don' t think that Mr. Cumming --
14 MR. MILLER:
Let me just say because it is my 15 letter, the letter was written December 22nd and was sent to-16 counsel for all parties on December 22nd.
17 MR. CUMMINJ:
I have the letter of the 22nd.
18 MR. BORDENICK:
I thought you were referring to 19 the filing of yesterday.
i 20 MR. MILLER:
The filing was made yesterday.
The 21 letter is an attachment to the filing of yesterday.
22 MR. PIRFO:
I was trying to understand what you
~N 23 were referring to.
I didn't even realize we had that.
(J 24 MS. LETSCHE:
Going back to the letter, that sets 25 forth a proposed schedule, which is not all-inclusive by any ACE-FEDERAL REPORTERS, INC.
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means because there are a couple of witnesses on there whose 2
depositions had to be canceled, even though they are listed 3
as if they would have already taken place by now.
4 And as I guess everyone noted in their papers 5
filed with the Board before this conference, the re a re o the r 6
witnesses who have not -- people whom parties have indicated 7
they wish to depose who are not yet included on this 8
schedule.
9 According to our latest count -- and this doesn' t -
10 include the five number that Mr. Irwin mentioned a moment fs 11 ago in terms of new LILCO witnesses -- not counting tha t, by b
12 our count there were an additional, I believe, 14 witnesses 13 that need to be scheduled beyond the 21st of January.
14 One, two, three, four, five, six of them are 15 listed in the December 22nd letter.
That is the four 16 subpoenaed FEMA individuals and the two Suf folk County 17 witnesses, Dr. Harris and Dr. Mayer, who are available to be 18 deposed on the 23rd.
19 So by our count, not counting whoever additional 20 LILCO identified, there would be eight in addition to the 21 six listed in this letter, which would be af ter the 21st.
22 I notice on Mr. Irwin's agenda he also mentions,
{}
23 however, depositions of NRC Staff personnel and depositions 24 of New York State personnel.
Now, I don' t know who those 25 are or what their numbers are, but that would be an ACE-FEDERAL REPORTERS, INC.
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addition to the 14 by my count.
2' JUDGE FRYE:
Let's go through.
3 Mr. Caldwell has been deposed, I take it?
4 MS. LETSCHE:
That is right.
1 5
Mr. Baer and Mr. Kessler, who are the first two 6
listed here, they were canceled.
So they need to be 7
rescheduled.
8 JUDGE FRYE:
These have to be rescheduled.
9 MS. LETSCHE:
Right.
10 JUDGE FRYE:
Then going back to the first page, 11 Ford Rowen was deposed this morning, I take it?
12 MR. IRWIN:
That is correct.
13 MS. LETSCHE:
de Barrio was deposed yesterday.
i 14 MR. MILLER:
Judge Frye, it may help, the 15 individuals on the first page you are looking at are 16 included in the larger listing, also.
17 JUDGE FRYE:
Okay, I see, yes.
I was just 18 picking that up.
19 MR. IRWIN:
Judge Frye, maybe --
20 JUDGE FRYE:
That then leaves everybody after 21 Rowen; those depositions still have to be taken?
22 MS. LETSCHE:
That is right.
(}
23 JUDGE FRYE:
Plus eight, is that right?
24 MS. LETSCHE:
By my count.
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because that was the indication we had had prior to today, 2
that there would be one unidentified person.
It sounds like 3
there might be four more.
4 That also doesn' t count any NRC deponents, which 5
I guess would be Mr. Weiss and Mr. Schwartz, or any New York 6
State deponents, if any such people are noticed.
7 JUDGE FRYE:
Who are the eight now?
Would you 8
give those to me, please?
9 MS. LETSCHE:
Who the eight are that aren't on 10 the list in the letter would be Dr. Sagert, Mr. Zook, the 11 other person on Contentions 38 and 39 whom we have not been 12 able to give out the name yet.
Let me see, Mr. Hockert.
He 13 is a LILCO witness.
Ms. Goodkind is a LILCO witness.
14 Messrs. Baer and Kessler, who are LILCO 15 witnesses.
16 JUDGE FRYE:
Could you give me a minute.
17 MS. LETSCHE:
I am sorry.
18 JUDGE FRYE:
Baer and Kessler.
19 MS. LETSCHE:
One whom we counted, and we don't 20 know who it is, on Contention 50.
21 Does that add up to eight?
22 JUDGE FRYE:
I have got seven.
23 MS. LETSCHE:
The other one might be Mr. Purcell,
(
24 because I understand he is not available on the date when he 25 is scheduled.
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MS. MC CLESKEY:
Let me read them to you again.
2 It is Sagert, Zook, the 38 and 39 unnamed Suffolk County 3
witness, Baer, Hockert, Goodkind, Kessler, and the LILCO as 4
yet unnamed 50 witness.
Then in addition there are two 5
other people who have been identified for deposition.
Those 6
are Weiss and Schwartz' from the NRC, which means we have 10 7
depositions that are not on the list that is in the letter 8
that we are talking about.
9 Between the end of this' week and deposition end, 10 we have 21 people left to take, not counting anybody who-11 hasn't been identified yet.
12 JUDGE FRYE:
From now 21 people?
13 MS. MC CLESKEY:
Yes, not counting this week and 14 not counting anybody who hasn't been identified yet on.the 15 letter that we are -talking about-through Robinson on 16 Friday.
By the end of this week we will have completed all 17 but 21 people.
18 JUDGE FRYE:
When you get to Robinson, you will 19 have 21 remaining?
20 MS. MC CLESKEY:
Right, and my understanding is 21 that the parties have agreed on the schedule that is listed 22 in the letter through Robinson, and we have sort of left the
(}
23 rest of the schedule somewhat flexible, depending on what 24 happens today.
4 25 Now, of the depositions that have been scheduled, ACE-FEDERAL REPORTERS, INC.
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there are already six depositions seiteduked b'eyond the
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9 JUDGE FRYE:
Is there any possibi ity of eliminating any of the FEMA, deponents in\\
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light of this 10
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4 4
11 designation that FEMA has just made?
Frankly,7, Judge Frye,'I would have-12 MS. LETSCHE:
s 13 to think about it.
I would have to-go back and reconstructs
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14 what it is that they had done.
Some of those individualswe'['
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15 had intended to no'tice whether they were witnesses.or not-16 because of their evaluation duties during the exercise, and, 17 frankly I would have to go and check.
There;might be a s 18 possibility. ' I don' t want t'o commit to that.
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't R. CUMMING:
Judge Frye,.if I'may suggest one 20 other factor -- and I don't mean to'ppeaks on behalf of
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21 Intervenors, but FEMA had submitted to the Board for in Q>,
22
-camera review certain documents and asserted privilege.
I 23 would assume that a ruling on that would be valuable to all 24 parties as well as FEMA prior,to the deposition of FEMA i
25 personnel because if it is adverse, and assume it is not L
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otherwise stayed or appealed, then they would have the 2
benefit of those documents or would want the benefit of 3
those documents for the purposes of the depositions.
4 But I had actually not focused on that acpect 5
until just now, when the discussion prompted my memory.
6 MS. MC CLESKEY:
I would only add to that that 7
Suffolk County has already noticed and deposed six 8
nonwitnesses for FEMA, has six more noticed for deposition 9
.plus the three designated witnesses, which means if we go 10 through in the current schedule they will have deposed 12 11 nonwitnesses, which seems excessive to us.
s 12 13 14 15 16 17 18 19 20 21 22 0
23 24 25 ACE-FEDERAL REPORTERS, INC.
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MR. CUMMING:
On'logher. item,J,udgeFrye.
e I was 7
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represent them at this conference.
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Let me 1
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10 just nots for the record that the return dates are beyon.d 11 the,date of the order.:
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12 MR. MILLER:
Judge Frye, 1rt me just comment with
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13 respect to that.
I think Mr. Cumming is aware of this e
o 14 already.
I and Mr. McMurray o'f my of t ice have had m
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3 16 other agencies.
ife have'been advised by all agencies
,' i 17 except, I believa, PDA, that there is no intent by those
'A 18 agencies to contest the validity of the subpoenad based upon 19 the return date'being beyond January 21st.
E 20 l And they no intend at tMs time to pEoduce those i
21 people for depositions.
And th y b ive informed us that q
22 Mr. Cumming.will have represuntation rights.
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23 MR. CUMMING:
I have not been so informed.
That hI 9
24 doesn't maan it's not accurate.
I would assume counsel's
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3670'03 02 121 k-s EAV/bc-1 JUDGE FRYE:
You're not moving to quash those 2
subpoenas?
3 MR. CUMMING:
Technically, they're beyond the 4
date of the cutoff date for discovery.
5 JUDGE FRYE:
I realize that.
6 MR. CUMMING:
So, unless it's so modified, there 7
would be technical insufficiency.
8 JUDGE FRYE:
Are you moving to quash the subpoena 9
or not?
Either you are or you aren't.
10 MR. CUMMING:
Yes, on the technical basis that 11 the date is beyond the date of your order, yes.
I'm moving 12 to quash those subpoenas.
13 JUDGE FRYE:
That's another item on our agenda 14 then.
And that's the only basis?
15 MR. CUMMING:
As I understand it, there is a 16 question of the sufficiency of the service.
And there is an 17 issue as to whether, under the NRC regs, the fee for 18 appearance was supposed to accompany the subpoena.
19 JUDGE FRYS:
And did not?
20 '
MR. CUMMING:
And did not.
JUDGE FRYE:
We'll hold that.
Are you all 21 ;
I 22 i prepared to respond to that?
23 MR. MILLER:
Judge Frye, all I can say in 24 response is that I think every matter that's referenced by 25 Mr. Cumming is a very technical matter.
My firm has had
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discussions with the General Counsel's Office of the 2
agencies.
They have indicated no problems with the service 3
matter and the way the service was made on their people.
4 They've indicated no problems with the nonpayment I
5 of fees to government witnesses in a government proceeding.
6 And it seems to me Mr. Cumming is going pretty far afield 7
here in suggesting motions to quash subpoenas on those kinds 8
of grounds.
9 JUDGE FRYE:
If you all can work that out.
I 10 MR. MILLER:
I had discussions.
11 JUDGE FRYE:
You had, I understand.
12 MR. MILLER:
But, Mr. Cumming, as of last week, 13 we had no indication from Mr. Cumming that there would be a 14 motion by FEMA to quash the subpoena.
In fact, the contrary 15 was taken by Mr. Cumming.
16 MR. CUMMING:
I believe counsel misrepresents 17 what he stated to me in my letter.
In fact, we did indicate 18 that there was technical insufficiency with the return.
19 FEMA counsel was not particularly interested in i
20 raising that issue, assuming that was not the determinative 21 fact upon which the Board would decide the continuance of 22 the discovery period.
23 But, since Judge Frye has asked me directly 24 whether I move to quash, I am in the posture that I move to 25 '
quash.
And I believe that there has to be personal service ACE-FEDERAL REPORTERS, INC.
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under NRC regulations.
2 If the counsel's operations for those respective 3
agencies wished to take some other position, they would not 4
have authorized me to represent them in this hearing.
5 They were so informed that I had the right to 6
fully represent them.
7 JUDGE FRYE:
Mr. Bordenick, do you have any words 8
of wisdom here?
9 MR. BORDENICK:
Not on this particular issue.
I 10 did want to point out, unless the Board wants to hear 11 further discussion on this point, for the sake of 4
12 completeness of the schedule of witnesses, Mr. Irwin and I
(
13 have held discussions regarding the date, time and place for 1-4 him, or for his firm to depose the two staff witnesses that 15 we've designated.
16 And if the Board and the parties would like that 17 information, I can give it to you right now.
18 !
JUDGE FRYE:
Yes.
19 MR. BORDENICK:
The date we have agreed on is 20 Friday, the 16th of January.
21 MR. MILLER:
We have people scheduled on 22 {
January 16th.
I 23 MR. BORDENICK:
I'm really surprised to hear the 24 l County say that.
I 25 l MR. ZAHNLEUTER:
I'll say it, too.
I 1
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MR. BORDENICK:
I'm surprised to hear the State 2
say it.
There are a lot of attorneys in your firm.
3 There are a lot of attorneys that work for the State of New 4
York.
5 MR. IRWIN:
That's correct.
6 MR. BORDENICK:
We're operating under a very.
1 7
tight schedule.
The applicant has filed a motion.
We've 8
responded.
We've designated the people.
Those are the 9
dates.
I can tell you right now that Mr. Weiss is not,
10 available the following week.
He will be away on travel, on 11 other matters, other than business.
12 We can talk further, but that's the date we've sd 13 agreed on.
14 JUDGE FRYE:
Given that, given what we've 15 developed so far, Ms. Letsche, it looks to me like your 16 suggestion of an extra nine days is probably not enough.
4 17,
MS. LETSCHE:
I think that's right.
Given what 18 l we're hearing here today.
19 MR. IRWIN:
Judge Frye, Ms. Letsche may be right, 20 although before one tries to figure out where one puts the 21 date, one ought to think about some possibilities for i
22 l condensing, k
23 f Mr. Bordenick indicated, the steff has agreed to l
24 i' make Messrs. Schwartz and Weiss, neither of whom who are
~ }
25 ;
proposed as witnesses, sponsoring direct testimony, I
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available on January 16th.
It may be possible to hold some 2
of the FEMA depositions with the witnesses testifying as 3
panels, as occurred previously in this case, and was 4
approved by the Appeal Board, with Intervenors reserving 5
their right to question individual witnesses later, 6
individually, if matters of voracity or other subjects not 7
going to their being experts came up.
8 So there may be some possibilities.
9 JUDGE FRYE:
Let's explore that one just 10 quickly.
Ms. Letsche indicated that she didn't think you'd 11 save any time doing that because, apparently, the 12 questioning for these witnesses will be pretty much specific
(~}
\\-
13 to each witness and not generic as such.
14 MR. IRWIN:
They're Mr. Cumming's witnesses, but 15 I'm not sure that's necessarily the case.
The RAC tends to 16 function as the committee; while individual exercise 17 evaluators may have had different places and stations during 18 exercise, there is a collective work product which involves 19 members of the RAC.
20 l That's particularly true of Messrs. Koeski, 21 Baldwin and Keller.
If what one is interested in doing is 22 assessing the collective information available to people, it 23 strikes me that it's more efficiently done together.
24 JUDGE FRYE:
You have no objection to their (l
25 !
testifying individually, you said earlier.
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MR. CUMMING:
The FEMA position is that we would 2
respectfully request that they be deposed as a panel.
As I 3
understood the basis, this is the three designated 4
witnesses.
5 JUDGE FRYE:
The designated witnessei:.
6 MR. CUMMING:
The complications of the 7
nonwitnesses have been accurately stated, in fact, by Mr.
8 Miller, because FEMA has, in fact, represented them on the 9
basis that has been stated before this Board.
10 We are still uncertain.
And in those agencies 11 apparently, there's still some uncertainty, although 12 Mr. Miller represents it's been decided as to what their
/]
\\-
13 position is; the Board has not distinguished, and I guess 14 other parties, too, feel it may be proper to distinguish 15 between these individuals as fact or expert witnesses.
16 But, assuming they're to be deposed as fact 17 witnesses, the document issue I raised earlier is 18 appropriate.
Also, no prior proceeding before NRC has ever 19 allowed individual RAC members to be deposed.
And we did 20 '
assert the deliberative process over that as well as the 21 documents.
i 22 '
You ruled adversely to us on the 17th.
23 JUDGE FRYE:
Your affidavit said absolutely 24 j nothing about testimony.
You gave me no basis to rule in 25 your favor on the witnesses.
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MR. CUMMING:
The understanding of FEMA was that
~
2 an affidavit from the head of the agency did not have to be 3
asserted.
In this case, there was a pecularity that these 4
people represented the full regalia of other agencies.
5 I won't speak to that other than the fact if it's 6
deficient, it's deficient, you so ruled.
7 The FEMA request to have the people deposed as a 8
panel, the designated witnesses, is based on the 9
understanding that they are supposed to be allowed to be 10 deposed as to what their testimony would be with respect to 11 the contentions.
12 With respect to Mr. Koeski, he's just back on 13 board this week.
In fact, I interrupted time in New York to 14 basically come to the conference.
We are diligently trying 15 to prepare testimony as rapidly as possible.
I think 16 there's an economy to having them deposed as a panel.
17 I can find no written precedent that I can i
18 represent to the Board which states that they should or 19 should not be deposed as'a panel.
20 FEMA requests the deposition as a panel based on l
21 the fact that it's a collegial process and we do represent 22 l that any of those three witnesses would be able to testify 23 l with respect to any of the contentions.
i 24 JUDGE FRYE:
Let's depose the witnesses as a (2) i 25 a
- panel, s
l l
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MS. LETSCHE:
Can I make one comment in response 2
to Mr. Cumming, prior to that ruling, Judge Frye?
3 With respect to precedent twice before in this 4
proceeding, we have deposed individual RAC members, 5
including Mr. Koeski and Mr. Keller and Mr. Baldwin, who are 6
advisers to the RAC individually, although they did present 7
testimony as a panel.
8 Once, the third time, we deposed that group, we 1
9 did depose them as a panel because those depositions were 10 taken for a very limited purpose.
We had deposed them two 11 times before and there was a limited reason that we were 12 deposing them, and it did make sense.
We were in the middle 13 of the hearing at that point as well.
14 And it made sense for efficiency then to depose 15 them as a panel.
These three gentlemen, in addition to 16 being designated witnesses who will apparently present 17 testimony as a panel, also were individual evaluators.
18 And Mr. Koeski designed and ran the entire 19 exercise.
So, in addition to whatever they may have to say 20 l concerning the contentions, which I guess they are going to 21 present together, they each did something different at that 22 exercise.
And it is those activities as well as-their 23 potential testimony as to which we intend to question them.
I 24 And in the past, as with every other witness, we 25 l have been permitted to depose them individually.
And I l
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would request that that practice be continued.
These are 2
very important witnesses, and I think the idea of having to 3
take the position of two other witnesses sitting there and 4
able to offer their opinions and observations while the 5
witness whom you are trying to question is attempting to 6
answer a question really limits your ability to obtain the 7
discovery you're trying to get.
8 I just would request the Board to continue prior 9
practice.
I would say that these are important witnesses.
10 MR. CUMMING:
Judge Frye, if I may respond 11 briefly, the prior depositions were pursuant to agreement.
12 As I think I have accurately represented to the Board, there n(~)
13 is no precedent on this issue.
14 However, FEMA is on the record in the transmittal 15 to-NRC, which I believe has been served informally on the 16 Board, transmittal revisions 7 and 8, that we are strained 17 resourcewise.
18 The gentlemen concerned, particularly 19 Messrs. Keller and Baldwin, are instrumental to our current 20 l RAC review process in Region Two and also with respect to 21 Region One.
22 l And we do have the currently operating plants to 23 be concerned with.
In part, FEMA's request is based not 24 only on economy, but based on again, as I restate, the 25 l collegial notion of the RAC.
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Certainly Mr. Koeski can speak to questions s
2 concerning the RAC, as can Messrs. Keller and Baldwin.
And 3
there's no restriction on counsel for Intervenors to asking 4
them any question; assuming that these gentlemen are under 5
oath, there should not be any modification based on the fact 6
that they are merely in the presence of two other panelists.
7l JUDGE FRYE:
I think we should do this as a 8'
panel.
I don't see why you can't question them individually 9
while they're sitting as a panel, where you're talking to 10 one particular witness who has knowledge of a particular 11 l thing that the others don't.
L 12 !
All right.
That gets us back to the problem of I'd
\\/
13 designating the cutoff date, the final, final cutoff date, 14 g and the date for the conclusion of discovery.
15 As it now stands, we had set, is it Januaryr 22nd 16 or January 20th -- Januarry 23rd?
17 MS. LETSCHE:
Twenty-first, I think.
18 JUDGE FRYE:
Twenty-first as the date for the 19 cutoff.
Given the fact that you've got these additional 20 i witnesses, it seems almost to me that you've got to go into 21 i the first week of February.
1 22 Maybe you can make it by the 30th by taking the 23 '
deposition of the three FEMA witnesses together though.
24 f It's going to be close.
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25,
MS. LETSCHE:
It is because I'm not sure how much e
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shorter that's going to end up being.
2 JUDGE FRYE:
It seems like February 4th is 3
probably a better estimate.
4 MS. LETSCHE:
Could I just suggest that we go 5
ahead and make it the 6th and give us ourselves that whole 6
week to schedule in?
7 JUDGE FRYE:
February 6th.
8 MR. IRWIN:
Judge Frye, LILCO is not prepared.
I 9
have some additional ideas that would be useful to wrap in 10 with that from our standpoint.
11 JUDGE FRYE:
The next' point I think we want to 12 get to and this maybe fits with what you want to bring up --
O
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13 maybe it doesn't -- is the cutoff date for the 14 identification of witnesses.
15 Does that fit in?
16 MR. IRWIN:
Actually, yes, sir.
I had three 17 things in mind.
That was one of them.
The second was 18 cutoff of other remaining discovery.
And the third was the 19 ;
means of keeping the Board informed as to the progress of l
20 '
discovery between now and the magic date of February 6th.
4 21 !
So we'll take them in any order the Board I
22 l wants.
But I think one of the reasons we got into problems 23 l in the past several weeks was that the parties and the 1
\\
24 l Board, the Board needs to supervise the process, or at least (1) i 25 remained informed of that.
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And that hasn't happened in a way that was always 2
optimal.
And we can do better.
3 JUDGE FRYE:
All right.
How about January 16th 4
as a date for the final designation of witnesses?
5 MR. IRWIN:
The only problem with that, Judge 6
Frye, and I don't know how to deal with this unless we can 7
get help from Suffolk County, is that we are deposing 8
Elizabeth Loftus only on January 16th.
9 It has been represented to us that she will not 10 be available any day before then.
If she can be made 11 available before then, we'll be happy to assess whether we 12 need to designate a witness.
O's /
13 And, Zook, we've not been able to get a date 14 for.
And there's one other witness whose identity we don't 15 even know yet.
h 16 JUDGE FRYE:
I know.
But, at some point, we've 17 got to set a date.
18 MR. IRWIN:
How do I shoot in the dark?
- Well, 19 how about this as a possible compromise.
20 l We want finality and certainty, too.
It seems to i
21 me Suffolk County is right on the cusp of designating its 22 l final current witness and, from the sound of it, they are on 23 i the verge of designating them probably by the end of this 24 l week.
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l 25 Even if contracting procedures haven't been i
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-1 completed, I don't see a reason why the witness' name cannot 2
be floated to the other parties as somebody whose 3
possibility they can begin to assess.
4 If Suffolk County is willing to designate their 5
final witness by the 9th of January and cooperate with us in 6
getting these four final witnesses deposed as fast as 7
possible, I think LILCO would be prepared to live with a 8
test of having to show good cause for designation of any witness whose name it wants to put in after, say, Jenuary 9
10 l the 16th.
i 11 We want certainty, too.
I just have a hard time 12 not being able to counter an expert with whom we have no U
13 experience whatever.
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JUDGE FRYE Ms. Letsche, do you have a response u
2 to that?
3 MS. LETSCHE:
Would you give me just a second?
-l
{
4 (Pause.)
5 I guess a couple of things, Judge Frye.
l 6
Supposing that on January 16th or January 15th 7
LILCO designates an additional group of witnesses.
As I 4
j' 8
said, there are already four we have never heard of, and I I
9 don't know -- we don't have them scheduled for depositions 10 yet, and we are scheduled through the 26th -- Mr. Hockert
[
11 and Ms. Goodkind.
I don't know anything about them, and I 12 am not going to be deposing them, it looks like, until after 13 the 27th of January.
14 And we are now being told that there are probably 15' going to be some more.
The fact is that some of this is 16 going to involve shooting in the dark, and that is life in
]
17 litigation.
f 18,
Also, the suggestion that the County is somehow i
19 not cooperating or that we should be able to identify these
]
20 l people earlier is just not right.
We are not permitted to I
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21 j release the name of an individual until our client, which is l'
22l; a government and has certain procedures, gives us the 4
l 23,
authorization to do so.
And we have all along attempted to l
1 24 go through that process as quickly as we can and have
- (:)
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25,
identified people the minute -- almost literally the minute i
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we get the go-ahead from our client.
2 And I might add that people like Dr. Loftus were 3
identified early in December and their resumes have been 4
available to LILCO since that time.
So the fact that she is 5
not available -- she lives in Seattle, Washington and she is 6
a very busy woman, and I am sorry that the only time she is 7
available is January 16th, that she is not available prior 8
to that is what I should say.
I can't control that.
9 I guess I am back to what I said before, which is 10 this has got to be a two-way street here, and the idea that 11 we should be told that we have to stop right this minute or 12 by Friday, give the name of this last person, and then LILCO 13 will have another two weeks to identify people we have never 14 heard of just doesn't really seem fair to me.
15 MR. IRWIN:
Let's make the street two ways.
16 Suffolk County, after they depose witnesses, 17 LILCO designates a response to their witnesses, whom we have 18 not yet deposed, feels they have to designate an additional 19 expert to counter our expert and we hired to counter their 20 expert.
Let them show good cause to hire an addiitional 21 witness.
22 All I am saying, Judge Frye and members of the 23 i Board, is that Elizabeth Loftus is a woman of national l
24 i reputation whom we have never met, who has got a singularly l
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which is basically impenetrable, is going to file 2
testimony.
3 I can' t know, nor can anybody else responsibly, 4
until we have deposed her what she is going to say or how to 5
meet it.
She has been represented as being unavailable 6
until January 16th, and there is not a thing we can do about 7
it unless the Board orders Suffolk County to make her 8
available earlier.
1 9
At the same time, we don' t know what to do.
10 MR. REIS:
Mr. Chairman, can I say a way out of 11 this may be by the end of the week people who are going to 12 be witnesses that have not yet been deposed, let the parties j
13 send out a precis of their testimony, not in great detail 14 but the subject matter that they are going to testify to, 15 and then everyone can see whether they need anybody more to 16 cover these people.
17 JUDGE FRYE I think the parties should be able i
18 to work that out, you know, and come'up with that sort of f
19 thing themselves.
20 I was just about to set January 23rd.
I 21 i MR. IRWIN:
Can we ask the Board for an 22 i instruction that all witnesses whose identities are E
23 I currently known be deposed by before that date, and that 24 includes Dr. Loftus, but Mr. Zook and the as yet
(
25 i undesignated Suffolk County witness?
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MR. MILLER:
Judge Frye, the problem we have are 2
the schedules of individuals.
3 Let me just say-this is not a one-way street 4
here.
We have been told that certain LILCO witnesses, 5
Mr. Purcell for example, is unavailable every day between 6
now and January 21st except for January 19th or 20th.
7 So we have the same problems with their-8 witnesses.
We have certain witnesses that are busy people.
9 We have told LILCO in good faith the first time they are 10 available for deposition.
We can do no better.
11 JUDGE FRYE:
I don't think the Board is in a 12 position to supervise this on a day-to-day basis either.
(
13 Obviously, the parties are the ones who communicate with the 14 witnesses, not the Board, and the parties know their 15 witnesses' schedules.
It is the parties who are going to 16 have to work out the scheduling in the final analysis.
17 I think the idea of getting these newly 18 designated witnesses deposed early is a good one if you can 19 work it out, but I can't sit here and tell you to work it 20 out.
I don't know whether you can or not.
I don't know l
21 what their schedules are.
22 l Let's set January 23rd as the date.
If there are 23 any witnesses designated after that date, it will be have to i
1 24 I be on a substantial showing of good cause.
(E) 25 h Unfortunately, I don't think there is any way 4
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to deal with this except arbitrarily and just set that date, 2
and we will have to live with it.
3 That brings us, I think, logically to the next 4
subject, which it seems to me affects the schedule rather 5
dramatically.
It is not necessarily the next item on 6
Mr. Irwin's agenda, but that is the idea of motions for 7,
summary disposition.
8 It was not the Board's, or at least it was not my 9
original thought to entertain motions for summary 10 disposition.
We had discussed this matter before the 11 conference, and the three of us I think are inclined to 12 agree with Ms. Letsche's point that if you are going to have r3
(_)
13 motions for summary disposition you have pretty much got to 14 h do it before the hearing begins.
I don't frankly see how it l
15 !
can work otherwise.
16 That would factor in, it seems to me, at least 60 17 days to the schedule.
So at that point, so far as the Board 18 is concerned, we will leave it up to LILCO.
If LILCO wants l
19 '
to take the extra 60 days and file motions for summary 20 disposition, that is fine with us.
Otherwise, we will go 21,
straight to hearing.
22 ;
MR. IRWIN:
Judge Frye, I would like to think u
23 I about that.
24 l In my experience it is not that that is I) 25 required.
We have the experience of two years ago, when the
?
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parties forewent summary disposition and the result was a 2
hearing that was approximately 110 days in length.
We don't 3
believe that an eight-hour exercise requires 110 days of 4
hearings, but quite frankly, the contentions that have been 5
admitted are 50 percent longer than the ones that were 6
admitted before, and I see the possibility of this occurring 7
again.
8 Summary dispositions seem to us to be a strategic 9
way of seeing whether this was going to be necessary, if a 10 hearing that length is going to be necessary.
11 I guess the Board knows its own resources and i
12 limitations better than any party can, but I had frankly O\\J 13 supposed that -- I understand Suffolk County's point about 14 notice and New York's corollary point about gamesmanship, 15 but I think those points can easily be met by requiring the 16 parties to give substantial advance notice to one another of 17 j their intent to file summary disposition motions and giving i
18 l each other some certainty as to what will be available for 19 l; filing testimony on the testimony filing date.
1 20 If what the Board is saying is that its own s
21 l resources are such that it cannot simultaneously deal on a 22 j rolling basis with issues coming to hearing and resolving 23 summary disposition motions, that is an important fact for 24 LILCO to know.
25 l I frankly would like a few minutes to think about i
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how to deal with that.
2 A 60-day step jump in the hearing is a big one.
3 JUDGE FRYE:
To what extent did you anticipate 4
filing motions?
5 MR. IRWIN:
Quite extensively.
6 JUDGE FRYE:
That is what I thought, and if you 7
are going to file them quite extensively, I don't see how we 8
can be conducting a hearing and giving effective attention 9
to the motions at the same time, and your proposal I gather 10 requires that.
11 MR. IRWIN:
Potentially, it seems to me though 12 that the starting date for hearings would be within the
( )'
13 Board's control and discretion.
x-14 What I was going to propose was this:
15 Sometime quite shortly after the conclusion of 16 discovery -- let's assume the discovery terminates in all 17 respects on February 6th.
Summary disposition motions would 18 be due -- they could be filed at any time between now and 19 :
then, as theoretically has been the parties' options for l
20 ;
some weeks.
But it is hard to file them until you know 21 better, until you have had some discovery.
But the parties 22,
should have to file all their motions by a date certain.
23 l Responses to the motions would be due, obviously, i
24 l in the normal course.
(
L 25 i Testimony filings would be due by all parties 1
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simultaneously on issues which were not the subject of 2
pending summary disposition motions within some time 3
relatively soon after the deadline for summary disposition 4
motions so as to provide the grist for the start of 5
hearings.
i 6
When the Board saw what was before it; i.e.,
what 7
kind of a mound of paper it had to manage, it could either 8
move the starting date of hearings up, it could schedule it, 9
take the two weeks after the testimony was filed or, if it 10 felt that its resources would be better conserved by letting 11 the testimony sit there for several weeks while it digested 12 summary disposition motions on the other issues, that would p/
s_
13 be within the Board's discretion.
14 But there would be no duplication.
You would 15 have testimony filed on issues which the parties didn't 16 think they could resolve summarily and summary disposition 17 motions on all the other issues.
So you would minimize any 18 churning around.
19 i I hate to say we will drop back two months and I
20 !
let the Board rule on summary disposition motions that don't i
21 cover the entire gamut of issues because I am not sure we 22 are going to cover the entire gamut of issues.
23 l On the other hand, I know what it was like, and 24 so does Mr. Shon, to have gone through those hearings three
(
25 years ago, and from a resource utilization standpoint, it i
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I fear that again if we don't have 2
a summary process, and I think the mechanism I am proposing 3
permits a ruling and balancing of summary and trial 4
processes.
5 That is why we would urge the Board to consider 6
it.
Now, how the Board manages to bring issues on and 7
resolve motions is clearly up to it, and while issues are 8
actually in hearing and testimony is stacked up, there is 9
not the kind of pressure to resolve motions that there would 10 be if everything was held in suspense until the motions had h
11 all been resolved.
12 I think it can work.
'xs) 13 JUDGE PARIS:
I just wanted to comment, 14 Mr. Irwin, that the job of wri ing a decision on the motion 15 4 for summary disposition, particularly if you have got a I
1 16 l
whole array of motions for summary disposition on a lot of I
17 issues, is not all that different from writing a decision, 18 and when you are writing a decision you don't do anything 19 else.
And when I write decisions on summary disposition, I 20 don't do anything else.
I don't have time to do anything 21 '
else.
22 MR. IRWIN:
Dr. Paris, as I say, the Board knows 23 its own method of operating far better than I ever can.
24 ;
What I was thinking of is a mechanism that allows i, '!
25 (
people to operate on -two tracks at once if they can, and co i
2 l
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I would frankly like, if it is the Board's belief that we 2
ought to go straight to hearing or we essentially take a 3
60-day hiatus to deal with summary disposition motions, I 4
need to consult with my client before I can say which we 5
would prefer.
6 JUDGE FRYE:
That is fair enough, and I think you 7
have to -- in assuming the 60-day hiatus, you have to also 8
understand that is based on the assumption.that your motions 9
will be quite extensive.
10 MS. LETSCHE:
Judge Frye, if I could make -- I 11 know your question was addressed to LILCo, and they have to 12 think about their answer.
But maybe there is something else 13 we could all be thinking about as something of an 14 alternative.
15 Perhaps it would make sense from a management of 16 this case point of view to get together again right after 17 the close of discovery, after the parties have a chance to 18 have completed their discovery and are in a position to know 19 what they are going to do and maybe, you know, submit a 20 piece of paper a couple of days after the close of discovery 21 saying we intend to file X number of summary disposition 22 f motions, we intend to file none, something like that.
23 Ilave a conference of counsel, get together, see i
24 I where we are, what the volume of motions is, what the volume O
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schedule in light cf some knowledge at that point as to 2
where we are.
3 JUDGE FRYE:
I think that is a very good 4
suggestion.
5 Does everyone concur?
6 MR. IRWIN:
I agree.
I think we can probably f
7 even do it before the close of discovery.
8 JUDGE FRYE:
I think it would be better to wait 9
until after so that there are no loose ends still hanging 10 out there.
If we were to do that the week of February 11 9th....
12 MR. IRWIN:
The only problem with that, Judge 13 Frye, before I say I think it is a terrific idea, is that if 14 we don't imbed some deadlines in place now you think you are 15 going to have life hanging in suspense later, you can start 16 that process right now.
17 So I think we had better set some hypothetical 18 deadlines, albeit alternative ones, in place pretty soon 19 because I can tell you if we defer all decisions until 20 February 9th we are either going to have to commit now to an 21 l interval between that conference and testimony filing.
22,
JUDGE FRYE:
You are arguing for a conference 23 between now and February 9th?
i 24 h MR. IRWIN:
Yes, sir.
)
I 25 0 MS. LETSCHE:
I am not sure where we are going i
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to have it.
We have the two depositions a day between now s u
'2 and then.
1' 3
MR. LANPHER:
One moment.
j 4
MR. MILLER:
Judge Frye, I would like to say that 1
5 we were only able to have this conference today because of 1
i 6
the deposition schedule and the way we could accommodate the I
l 7
witnesses, and so forth and so on.
But there are virtually j.
8 two depositions a day between now and -- I think it is safe i
9 to say -- February the 6th -- the same will be true.
10 MS. LETSCHE:
The other thing is, frankly, we are i
)
11 considering filing some summary disposition motions, also, l
12 and as a practical matter, I don't think we are going to be 13 in a position to be making a decision for sure on what we 14 are going to do until we get to the close of discovery.
15 It just seems logical to me to schedule it i
16 shortly after that, but what I would propose actually is if 17 discovery closes on the 6th, which is a Friday, that 18 possibly by close of business on the following Tuesday, 1
19 which is the 10th, parties could submit some kind of filing 20 to the Board saying what their intentions are or something.
l 21 I don't know if we could figure out exactly what it would 22 say.
4 23 And then perhaps we could schedule a conference 24 for that Thursday, the 12th, or sometime later that week to
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25 l discuss it and set the schedules at that point.
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MR. IRWIN: 'That is too late.
We lose a month 2
just right off the bat.
3 Suffolk County will have deposed, I think, all of 4
LILCO's wtnesses or, if not all, virtually,all, except 5
whatever. witnesses we may end up having to depose in responsetotheirrecentlydesignatedhitnesses,bytheend 6
N 4
7 of this week.
8 They should be in pretty good shape to know what 9
issues they consider to be amenable to summary disposition 10 by then, pretty soon.
11 I think it is fair to say that LILCO will have a 12 good working idea of what issues it intends to file summary pb 13 disposition on by next Friday, January 16th.
14 I suggest that be the date for parties to report 15 provisionally their intentions to the Board.
16 [
JUDGE FRYE:
All right.
We will take a h
17 provisional report on Friday, the 16th.
18 MR. MILLER:
A report of what?
19 l JUDGE FRYE What you envision you might want to i
20 l move for a summary disposition on.
I 21 j MS. LETSCilE Provisionally at that point.
l 22 i MR. IRWIN:
Let me suggest that that list ought 23 i
to be inclusive; in other words, people ought to be able to 24 W drop issues, but it ought to be a lot easier to drop them 25 ]
than to add them because we need to get some idea of what i
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the summary process would look like.
2 And somebody said they are going to file one 3
motion on the 16th and it turns out that they are going to i
4 file 10....
5 JUDGE FRYE:
Based on your discovery, too, 6
completed through that date, I think, yes, you shouldn't go 7
back and pick up somebody -- a motion based on discovery 8
that had been completed prior to January 16th.
9 Let me throw out something to you you can be 10 thinking about.
It is a technique that I tried in one other i
11 case, and I can't say that I think it worked very well, but 12 I think very often some parties anyway lose sight of the 13 fact that a summary disposition motion is a means for 14 resolving an issue on the merits.
It is not a procedural 1
15 motion at all.
16 Often motions in my experience tend to get bogged 17 down in a lot of argument, without much attention to what 18 the facts are or are not and whether they are truly subject 19 to dispute.
20 So you might think in terms of identifying facts 21 which you think are not subject to dispute and forget about 22 the rest of the summary disposition process.
23 Through that process we might be able to, in l
24 essence, como up with a list of facts which are not subject (1) 25 l to dispute, which would be the equivalent of a stipulation, I
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MR. IRWIN:
LILCO concurs with that.
I think 2
that's implicit in both the requests for admission the 3
various parties have filed, and in one outstanding one 4
involving the time line.
5 MR. CUMMING:
Judge Frye, I believe you asked 6
LILCO last time whether it would stipulate to certain things 7
that were not tested during the exercise, and LILCO 8
declined, as they are largely focused on contentions 15 and 9
16.
10 The FEMA panel will be available relatively early 11 to be deposed on that.
So that might be something that 12 could expedite things.
l')
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13 Also, I don't want to get off the LILCO schedule 14 of this proceeding, but contention 19 is not subject to 15 discovery.
So the Board might wish to consider setting a 16 date for that to be.
17 JUDGE FRYE:
I was going to come to your motions 18 later so why don't we just hold that for now?
19 We've been going for about an hour and 20 20 minutes.
Why don't we take a 10-8.inute break and come back 21 j at 4 o' clock.
22 (Recess.)
23 JUDGE FRYE:
Can we go back on the record if j
24 everyone is here?
l
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25 MR. IRWIN:
Ms. McCleskey is still on the phone.
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My client is on an airplane.
The whole corporation's on an 2
airplane.
3 JUDGE FRYE:
She's trying to get in touch with 4
your client?
5 MR. IRWIN:
She's gotten sidetracked, having 6
realized there was an airplane gone.
I think I may have a 7
temporizing suggestion when we go back on the record.
8-JUDGE FRYE:
I think we're on the record.
9 MR. IRWIN:
I have a suggestion, because I know 1-0 my client's instincts, which is not to stand still for 60 11 days for anything, no matter how constructive it may i
12 theoretically be.
j 13 on the other hand, my client also believes there i
14 was a lot of time and pain associated last time that might i'
15 have been more efficiently avoided.
16 It seems to me that if parties to submit to the 17 best.of their knowledge and the best of their ability good 18 faith estimates as to.what.they intend to do on the 16th 19 with' respect to summary disposition, we'll be in a lot 20 better position than we are today to know what the 21 alternative shapes of the hearing would look like.
22 My feeling is that if, today, we were to agree on 23 a schedule for finishing discovery, filing direct testimony 24 on the assumption that there were no summary disposition
- (
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25 motions, and then reexamine that schedule very shortly after ACE-FEDERAL REPORTERS, INC.
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the 16th very shortly after the 16th, based upon the filings 2
of the 16th, I think we could be in a more informed g
3 position.
4 I,
frankly, am very reluctant, Judge Frye, to 5
make the kind of commitment that the Board reasonably wants 6-and which LILCO would be able to make without liability to 7
talk to my client.
8 But, I think, on the 16th, we'll make a real good 9
estimate of how many summary disposition moti'ons we think 10 we're going to win and trust Suffolk County and New York 11 State will do the same thing, and Staff and FEMA will do the 12 l same thing.
And we'll have an idea of what the summary b
N/
13 process would look like if it were to exist.
14 We'll know whether there's a 60-day hiatus or 15 maybe a three-week hiatus.
But, in the meantime, I think we 16 can safely say, absent summary disposition motions, 17 everybody files direct testimony on day X, whatever 18 arrangement we all agree on.
4 19 That's what I'd like to try to do.
And then 4
20 I we'll take another mid-course look, maybe on Monday, the 21 19th or Tuesday, the 20th, for real, by telephone conference 22 call, probably, because it's more economical.
23 JUDGE FRYE:
Okay.
Any problem with that?
24,
MS. LETSCHE:
I think, as long as everyone
(~3 25 recognizes that whenever we file on the 16th, it's going to ACE-FEDERAL REPORTERS, INC.
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be minus probably 25 depositions.
s 2
We'll certainly file whatever we can file at that 3
point, and the Board can do whatever it needs to do.
If you 4
want to set a schedule based on the schedule, I don't know 5
if that was part of the proposal.
6 If we're still talking about filing something on 7
the 16th, is that the only question?
8 JUDGE FRYE:
I think the point is that after the 91 statements are filed on the 16th, we'll know a lot better 10 what the scope of summary disposition motions might be.
11 MS. LETSCHE:
As I said, if the Board orders us 12 to file some kind of provisional report, we would.
I think
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13 I want to just go back and resurrect my original proposal, 14 which I think makes the most sense, which is immediately 15 after tne close of discovery, schedule a conference of 16 counsel, at which point everyone will be informed and we'll 17 be in a position at that point to give some real advice 18 that's informed.
19 And that that's the time to start setting 20 l schedules, since we'll all know where we are.
And I would i
21 l propose that we do that the 10th or lith of February, which 22 is right after the close of discovery.
23 j JUDGE FRYE:
Let's set tentatively February 10th.
24 I'll confirm that for conference of counsel.
I think that's 25li a good idea to have that on everyone's calendar.
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MR. IRWIN:
I've got no problem with that, Judge 2
Frye.
My only concern is that if we do nothing until then 3
in terms of setting schedules and knowing what kinds of 4
summary process the parties might engage in if it were 5
available, we are in fact going to find ourselves on 6
February lith with discovery completed, either no summary 7
disposition motions filed, or parties having to deal with 8
them and not knowing what the other parties and the Board's 9
expectations are.
10 And we will effectively have lost close to a 11 month from today.
So, if what we're talking about is filing 12 a report on the 16th, taking a look at that r,ight after, and
/~s kl 13 then having another conference on the 10th of February, I 14 agree with that.
I think that's a good idea.
15 JUDGE FRYE:
So you're suggesting we set a 16 co$ference call for January 19th or 20th?
17 MR. IRWIN:
Yes, cir.
18 JUDGE FRYE:
Are you talking about call or a live 19 conference?
20 MR. IRWIN:
I think a call will do and to assume 21 everyone files a good faith estimate of their intended 22 l summary process, we'll know a lot better.
LILCO will know a 23 lot better what kind of delays potentially are there, and so 24 will the other parties.
(
25 i I think we can cut the melon finer.
l ACE-FEDERAL REPORTERS, INC.
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MS. LETSCHE:
Can I just ask a clarification?
I 2
guess I don't understand what the purpose of a conference 3
call on whatever date you said, on the 19th, which I think 4
is a holiday.
5 JUDGE FRYE:
That's why I made it the 20th.
6 MS. LETSCHE:
I don't understand what the purpose 7
of that call would be.
8 MR. IRWIN:
Here's what I'm thinking.
My
-9 assumption is that the Board, all else being equal, has h
10 concluded it would prefer the parties to forego summary 11 process, file testimony, go straight to hearing.
12 I am prepared to live with that assumption today 13 in setting a provisional schedule, because it seems to me 14 that we complete discovery on the 7th of February.
We can 15 estimate when direct testimony would be filed thereafter.
16 But, if you recognize that that is a provisional 17 contingent schedule, we then take that and we can factor that into our planning.
Against that background, we file on 18 19 l January 16th an estimate with the Board of what summary i
20 '
process would look like if the parties were to engage in it 21 by their then best lights.
22 Early the following week, with those filings in 23 !
hand, we say, okay, parties, do you want to have summary i
1 24 process or do you want to stick with the schedule we agreed
(~T 25 l upon at the conference on January 6th?
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That's what I'm trying to do.
I'm prepared to 2
commit to a contingent schedule that has no summary process 3
in it.
My problem is I cannot commit my client to a 4
conclusion today without talking to him.
And I think we'll 5
know better by the 16th what the possible choices are.
6 As I say, if Suffolk County will depose all of 7
LILCO's witnesses except for whatever kinds of responsive 8
experts we have to designate by then, and we'll make our 9
best estimate of what we can do and we hope they'll mame 10 theirs.
That's what I'd hoped.
11 MR. BORDENICK:
Staff would support that 12 suggestion that the Board set a provisional hearing date.
("
13 JUDGE FRYE:
Hearing date or conference call 14 date?
15 MR. BORDENICK:
Both.
If I understood 16 Mr. Irwin's suggestion, he's saying a provisional hearing 17 date based on no summary disposition.
Of course, if that 18 circumstance, that date will have to change.
19 Judge Frye, it should be recognized that by 20 January 16th, by our estimate, there are probably going to 21 be as many as eight LILCO witnesses that the County and 22 j State will not have deposed by that time.
Not to mention 23 all these other FEMA witnesses that will not have been 24 deposed by that date.
25 Therefore, I feel compelled to again advise the P
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Board and the parties, as has been done a few moments ago, 2
that there's probably only so much that can be said in any 3
kind of a followup on January the 16th.
4 MR. ZAHNLEUTER:
Judge Frye, may I also say that 5
I have no problem with a conference call, but it should be 6
arranged so that it does not conflict with the depositions 7
that are scheduled for the week of the 19th, because I can't 8
be at a conference call on the telephone and at 9
depositions.
10 JUDGE FRYE:
I agree.
We'll have to schedule it 11 around your depositions.
I guess my attitude toward it is 12 that I don't see any problem with having a conference call
_s 13 and putting that on everybody's calendar.
And we'll see 14 whether anything useful can come of it or not at that time.
15 MR. CUMMING:
Judge Frye, Eor Husar is scheduled 16 for the 20th here in Washington.
I believe all counsel will 17 be here in Washington.
So the 20th would not be an 18 inconvenient date for FEMA counsel and others attending at 19 least the deposition, whether they still intend to depose 20 l Mr. Donovan.
I 21 l I'm assuming they're going to depose Mr. Husar 2 2 >I because he was the RAC chairman on provisions 7 and 8.
That 23 afternoon might be a convenient time for a conference call.
24,
JUDGE FRYE:
I would just leave it to the 25 l parties to inform us what is a convenient time on the 20th ACE-FEDERAL REPORTERS, INC.
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/ DAV/bc l-and place the call.
2 I assume you parties will probably meet at the 3
same location,'since you'll be at deposition.
4 MS. LETSCHE:
This is on the 20th?
5-JUDGE FRYE:
The 20th.
Now that raises the 6
question of setting a date, a tentative date for the 7
hearing.
I' understand.
Is there any objection to doing 8
that?
k 9
MS. LETSCHE:
I guess we could all sit here'and 10 pull dates out of the hat.
I would say that it doesn't make 4
11 sense to do that until after we have this conference call, 12 which is supposedly going to inform.everybody.
It seems-13 like kind of a waste of time.
s-14 JUDGE FRYE:
Let's set it.
I think it may be 15 good for comparative purposes if nothing else.
Setting it 16 on the assumption that there would be no motions for summary 17 disposition.
We at this-point are through with discovery on t
{
18' February 6th.
Now, how much time beyond that is needed for 19 testimony preparation?
3 3.
2 01 Let me say, when we get into testimony -- and I i
21 gather none of the parties have any objection to filing.
22 testimony simultaneously.
23 Also, the Board would like to proceed on an issue j
24 by issue basis as' opposed to hearing all of LILCO's case and h
4 25 then all of Intervenor's case, et cetera.
So that should be ACE-FEDERAL REPORTERS, INC.
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taken into consideration.
2 I guess the next question is:
Do you want to 3
file all testimony or the entire case at one time?
Or do 4
you want to put that on a rolling schedule?
5 MS. LETSCHE:
I think, Judge Frye, in the past, 6
we have done it in most instances in the emergency planning 7
procedure, we did it on a rolling basis.
And the parties 8
kind of agreed as we got along in the process as to what 9
issues would kind of cluster together.
10 Also in light of witness schedules, which is 11 another big consideration in this case.
When you have a lot 12 of witnesses, that it probably will make sense down the~ road
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13 to do it on a rolling basis.
14 Again, I don't think anyone's in a position right 15 yet to say we think these contentions should be first and 16 these contentions later, because I'm not sure people have 17 focused in that clearly yet on exactly how the testimony is 18 going to be structured.
19 But, as a general matter, I think filing it on a J
20 rolling basis ends up being the more efficient way to do it 21 for everyone.
Otherwise, you end up filing this giant stack 22 of stuff, and two-thirds of it sits there for two months i
23 {
anyway.
24 Then you have to go and find all your witnesses 25 again.
And it gets a lot more difficult logistically.
So, ACE-FEDERAL REPORTERS, INC.
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as a general natter, I'd suggest keeping in mind the idea of s 4 2
a rolling filing.
3 But, you know, you have to be in a position to 4
decide how things are going to be clustered and in what 5
order.
I don't think we're there yet.
6 JUDGE PARIS:
I think it's easier for the Board 7
to keep up with if it comes in on a rolling schedule.
8 MR. IRWIN:
I think what Ms. Letsche says is 9
accurate about past practice.
I've got just one concern, 10 and that is that the initial slug of, testimony filing be 11 substantial enough that we've got enough in the can to keep 12 the hearings going as we defer some issues.
13 That may be a matter as to which the parties 14 ought to try to get together.
We've been reasonably 15 successful at that in the past.
And bind ourselves to 16 making a proposal to the Board certainly not later than the-17 conference, which the Board now has scheduled probably on 18 "
the 10th or so of February.
19 JUDGE FRYE:
The 10th.
20 k MR. IRWIN:
My assumption would be that the first 1
21 l slug of testimony, whatever it was, would be filed quite 22 shortly thereafter, something like the 16th or 17th, with 23 hearings beginning not more than a couple of weeks after 24 that.
O 25 JUDGE FRYE:
Let's just say as a rule of thumb ACE-FEDERAL REPORTERS, INC.
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that the testimony, each filing ought to cover at least one 2
week's hearing.
3 MR. IRWIN:
That's correct, Judge Frye.
And I 4
think what would be a useful thought would be that the first 5
slug ought to cover enough probably to take us through --
6 it's hard to tell how fast hearings go.
Sometimes, they go 7
fast, sometimes they go slow.
8 But I think the initial slug ought to be prepared 9
for two or three weeks of hearings.
But we can work that 10 out.
11 JUDGE FRYE:
Good.
Now, you mentioned a date 12 there for the first filing of February 16.
ks 13 MR. IRWIN:
Yes, sir.
That's premised on close 14 of discovery on February 6th.
15 MS. LETSCHE:
That's not do-able.
I think we're 16 talking about whenever the first slug, to use Mr. Irwin's 17 terms, is going to be.
You have to remember that everyone 18 is going to be ti.ed up with depositions sort of nonstop 19 until the 6th of February.
20 At that point, you're going to be meeting with 21 your witnesses and analyzing whatever you've obtained from i
22 l discovery and preparing testimony and suggesting that that 23 could be done in a week's time, which is what you'd get up 24 to the 16th, with two weekends thrown in there -- is just G
25 not workable.
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Given the issues in this case, I would say that 2
we would need, in light of the discovery schedule, which is 3
just really going to tie everybody up, that we would need 4
until, I would say, the 6th of March, which would be four 5
weeks after the close of discovery; which I think would be 6
sufficient time to get all those materials analyzed and get 7
all the other testimony underway.
8 Because what you have to remember is, even though 9
you might have rolling filings, you're going to be in 10 hearing once you make that first filing.
So you've got to 11 get together with all your witnesses and get all that other 12 testimony that's going to be filed later down the road 13 underway before the lawyers get tied up in the hearings.
14 And I think having an up front time will enable-15 everyone to get-everything organized so that once we got 16 started, we could truly proceed, without having to stop and 17 prepare the testimony that's coming in later.
18 MR. IRWIN:
I just want to say that I think 19 that's more than we either need or have had in the past.
l 20 I'd agree to the middle of March or the beginning of March 21 if all the testimony were to be filed in one group at that 22 point.
But if we've got a rolling schedule, I think at 23 least eight lawyers from Kirkpatrick and Lockhart have 24 entered appearances in this case.
O#
25,
Not all of them are at every deposition.
The a
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same with our firm, and the.same even with the less ample u
2 resources of the other parties, that we can do better than i
3 that.
4 I think the 16th is practical if we have, as the 5
Board suggested, a couple of weeks testimony as the first i
j 6
slug.
And the history of this case has been that people 7
file testimony and they have hearings, and the parties are f'
8 expected to be able to do that.
And we-have.
9 MR. ZAHNLEUTER:
Judge Frye, might I add that the 10 cor rence of counsel on the 10th is in Bethesda.
That 11 would take one day out of my schedule.
Lincoln's Birthday 12 is the 12th, which is a possible holiday for me.
I could 13 work it or not.
14 But, in any event, the staff will not be working 15 in the state offices.
The same would be true on the 16th, 16 which would be Washington's Birthday.
4 17 JUDGE FRYE:
The 16th is a federal holiday, a
18 that's corrrect.
19 MR. ZAHNLEUTER:
The 16th is just not a do-able 20 l date.
21 MR. BORDENICK:
Staff conferring with FEMA 22 counsel is going to suggest the 23rd, which is a week l
23,
later.
24 O
25 i
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3670 06 01 163 DAVbur 1
MR. MILLER:
Judge Frye, I think we also have to 2
remember, Mr. Irwin points out that there are a lot of 3
lawyers working on this case.
There sre an average of about 4
10 to 12 depositions a week because we are doing two 5
depositions a day.
6 The lawyers prepare for the depositions, lawyers 7
take the depositions, lawyers prepare witnesses that are 8
going to be deposed, the lawyers are spread out and all are 9
working hard on this case.
10 Speaking for the County, I think the same is true 11 for New York State and I gather the same is true for the 12 Applicant and for the Staff and for everyone else in this O'
V 13 case.
14 No one is not working hard on this case.
15 JUDGE FRYE:
I don't think there is any question 16 in anyone's mind that everyone is working very hard.
17 The 27th of February.
18 MR. IRWIN:
That is for the first round of 19 testimony, Judge Frye?
20 '
JUDGE FRYE:
That is right, with the hearing to 21 commence --
22 ;
JUDGE PARIS:
I believe we are referring to it as t
23 l a slug.
l JUDGE FRYE:
-- with the hearing to commence 24 :!
f'T 25 i March 9.
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MR. BORDENICK:
Judge Frye, are you going to ww 2
factor in motions to strike and responses thereto?
3 JUDGE FRYE:
Do you have a history of motions to 4
strike?
5 MR. BORDENICK:
A very heavy and strong history.
6' I am sure Judge Shon will concur.
7-
-JUDGE SHON:
That is true.
8 JUDGE FRYE:
You know, I will tell you in a 9
little aside, I had a prehearing conference in one of these l
10 informal proceedings we have been getting lately, and we got 11 into this kind of back and forth about, you know, you file 12 this, then I file this, that, at this time, back and forth O
\\/
13 and back and forth.
14 Finally, I said, why don't we just forget about 15 all this stuff and have a hearing?
One of the Intervonors 16 said, Amen.
17 I am beginning to get the same attitude here.
18 MR. BORDENICK:
On motions to strike, I can
-19 suggest a vehicle that Judge Lawrenceson used.
That is the 20 party seeking to strike all or part of testimony of course 21 has to file that in writing, but the responses thereto can 22 l be made verbally at the hearing, and then the Board can I
23 !
rule.
24 We had some sort of a mechanism set up for that.
O 25 I don't remember the full details of that once you get into l
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these " slugs" of testimony.
\\s 2
We would come up on a Monday, and the first order 3
of business was to take up motions to strike testimony that 4
was going forward that particular week, for example.
5 MR. MILLER:
Judge Frye, that is correct.
6 In the procedure -- there was a change in the 7
procedure on motions to strike.
Maybe this would be 8
interesting background for your purposes.
9 We initially started with formal written motions 10 to strike, formal responses, and a formal Board order on the 11 motions to strike, and that did put a lot of time into the 12 schedule.
O 13 I think fairly quickly after that beginning Judge 14 Lawrenceson changed to where the motion to strike would be 15 in writing and would have to be filed so many days prior to 16 the beginning of those issues.
17 I think Mr. Bordenick is correct that parties 18 opposing would respond orally to the written motion to 19 strike at the very beginning of the hearings on those 20 issues.
21 The Board then would recess for however long it 22 took.
They would come back and make the rulings, and we t-23 went right into the testimony.
24 JUDGE FRYE:
That is the only sensible way I 25 think to do it.
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MR. IRWIN:
It worked quite well.
2 JUDGE FRYE:
If there are going to be motions to 3
strike.
4 So why don't we say that any motion to strike 5
must be filed or at least must be handed the Board and other 6'
parties five days prior to the date the testimony is to be 7
presented?
8 Now,-the hearing date.
I was about to say March 9
9.
10 MR. IRWIN:
That is fine with LILCO.
11 MS. LETSCHE:
Judge Frye, in the past we 12 traditionally held hearings from Tuesdays through Fridays.
rm k-)
13 That was to let everybody travel on Mondays and give people
[
14 a little bit of time in their office to get whatever 15 business they needed to have done, done.
16 I would suggest that that practice be continued 17 with respect to these hearings.
It is just very difficult 18 being out of your office for all that time.
19 MR. IRWIN:
Judge Frye, let me just indicate that 20 LILCO would prefer a five-day a week schedule.
I think the 21 only constraint on the schedule ought to be the Board's 22 resources.
If the Board can manage a five-day a week 23 schedule, so can the parties.
24 The Commission asked us seven months ago to have 25 l an expedited proceeding, and it is about time we remembered l
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that.
2 It is not the Board's fault we have got other 3
problems, but if the Board can manage a five-day schedule, 4
LILCO would vastly prefer it.
It is 25 percent faster, and 5
we will get through more.
6 JUDGE FRYE:
Let's defer that until we see.
We 7
will have a better idea of whac the hearing itself is going 8
to look like.
9 MR. IRWIN:
Fair eneugh.
10 MR. BORDENICK:
That is true.
I think it is 11 probably also a functior. of how quickly the hearing itself 12 moves.
(m
(-}
13 I will-remind the other parties here if they have 14 forgotten that Judge Lawrenceson and that Judges Klein and 15 Shon were very dissatisfied with the pace of the hearing, 16 and they decided we were-going to stay every night until, 17 what was it, 6:00 o' clock.
-18 So there are ways to speed things up.
- Also, 19 there are ways to relax a little bit if the hearing is 20 l moving along.
21 JUDGE FRYE:
That is quite true.
I also think 22 you reach a point of diminishing returns.
People begin to 23 l get tired about 7:00 or 8:00 o' clock.
I 24 l MR. MILLER:
Judge Frye, one factor.
/~T i
kJ i
25 j When you are making your consideration about the d
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length of the hearing week, what I recall about the length 2
of the days in the hearing week is that typically Mondays 3
were days spent preparing the witnesses for 4
cross-examination, what you have to do sometime.
Tuesday 5
through Friday was the hearing week, and Saturday is when 6
you were in the office doing the things you had to do that 7
were in the office.
8 So it is a seven-day workweek for everybody, but 9
we do need that one day of the week to prepare witnesses 10 that are going to be cross-examined.
That generally -- we 11 used that day as Monday.
12 Frankly, it is difficult in many cases, p(_/
13 especially where witnesses are traveling across country, to 14 work on weekends.
J 15, '
JUDGE FRYE:
I understand.
16 Let's see what the hearing is going to look like 17 before we make any final decisions about starting on Monday 18 or Tuesday.
19 l I think at this point we probably want to jump i
20 back to the FEMA matters that have been brought up.
We now 21 l have the motion to quash.
We have a motion to bifurcate.
22 l We have a motion to stay.
l 23 i The last motion, if I am not mistaken, is pretty 24 !
much taken care of, isn't it, Mr. Cumming?
That is correct.
It is superseded k
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2 JUDGE FRYE:
We don't need to worry about that, 3
the motion to stay.
4 MR. CUMMING:
The only thing with respect to the 5
motion to stay which I think supported this, and I think 6
this may be alleviated by the time of the deoosition, but 7
the. Board in its order of the 17th indicated a procedure 8
that would require FEMA to provide within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> 9
turnaround.the testimony that would have been given should 10 the attorney instruct the witness not to have answered.
11 Because of that and because of the logistics --
12 JUDGE FRYE:
How much time do you need?
13 MR. CUMMING:
We would recommend at least a 14 five-day period would be appropriate, assuming that the 15 questions are not so numerous as to make even that 16 unworkable, but we hope to restrict to an absolute minimum i
17 any instruction.
f 18 We understand the Board's interest to get on the 19 record as much.as possible.
Only the deliberations of the 20 RAC are in fact the issue that concerns, and we understand 21 the Board's. order to require the witness to answer before, 22 during, and after the exercise.
23 Certainly, the FEMA panel will answer that to the 24 best of their ability.
The question is now only with 25 respect to the four RAC members subject to the motion to J
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quash and the other FEMA personnel.
We are going to try to 2
have them answer fully with the exception of Mr. Husar, who 3
will deal with the deliberations of the RAC on Revisions 7 4
and 8.
5 So I hope that our instruction not to answer 6
would be kept to a minimum and that counsel's questions 7
would be kept to a minimum, too, but should they give us a 8
thousand questions, all involving the deliberations of the 9
RAC, even five days would be inadequate to respond.
10 JUDGE FRYE:
I would suspect that the questions 11 and objections would probably center around one or two or 12 three topics.
So you wouldn't be filing -- you know, be
(
\\
13 dealing with a totally separate matter for each objection.
14 MR. CUMMING:
That is correct.
15 JUDGE FRYE:
I would expect, wouldn't you, 16 Ms. Letsche?
17 MS. LETSCHE:
I would think so.
18 i Frankly, Judge Frye, it is a little difficult to 19 predict because it is sort of hard to know when these 20 instructions are going to be given.
They are not always i
21 l consistent, and it is a little hard to predict what 22 '
Mr. Cumming during a particular deposition is going to 23 consider going to the deliberation of the RAC.
We have 24 ;
certainly had different interpretations that he has given O
25 that issue in even the depositions we have had to date.
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But just to answer your question, our questions, 2
I think a lot of people sitting here can figure out what 3
they are going to be, and we are going to be trying to find 4
out, you know, what happened on the day of the exercise and 5
how the conclusions contained in the FEMA report were 6
arrived at and what they were based on.
7 JUDGE FRYE:
That is what I would have 8
anticipated.
I think five days is reasonable.
9 MR. CUMMING:
I was just going to suggest that an 10 example of a question in the past that was objected to was 11 where the Intervenors requested the RAC chairman to identify 12 which RAC members had voted which way on a given issue.
We 13 feel that is an inappropriate question.
14 JUDGE FRYE:
Sure.
I understand.
15 Five days, then, for you to assert your 16 deliberative process privilege.
17 Now, there is the Question 2 I have a note with 18 regard to, the memorandum and order which I guess was issued 19 back in November, in which we said FEMA was a party, and 3
20 !
then we got a motion for reconsideration I think from FEMA l
21 i and a motion for clarification from Staff.
j I
22 '
I have been awaiting responses, which I don't 23 ;
believe I have seen.
24 MS. LETSCHE:
Was that, Judge Frye -- I am just 25 trying to remember -- was that motion for reconsideration ACE-FEDERAL REPORTERS, INC.
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in another docket?
2 JUDGE FRYE:
I don't recall specifically.
3 MS. LETSCHE:
I would say off the top of my head 4
that there hasn't been something we haven't responded to, 5
but I can't tell you what the response was to because 6
calling it a motion for reconsideration of that issue 7
doesn't ring a bell in my head.
8 JUDGE FRYE:
Staff's motion was a motion, was it 9
not?
10 MR. CUMMING:
Judge Frye, if I may put it in 11 context, the Board ruled on the 19th of November with 12 respect to the first motion to compel against FEMA, and O
'(/
13 shortly thereafter FEMA responded, gave a response to the 14 Board with respect to seeking reconsideration or 15 clarification, and the Staff on the 1st of December filed 16 the NRC Staff motion for clarification of the Licensing 17 Board's order of November 19th, 1986, compelling PEMA to 18 answer certain interrogatories.
19 MR. REIS:
Yes, your Honor.
That is the one 20 ;
wherein we indicated that the Board should make clear that 21 l FEMA was not a party and clarify its status as a witness in 22 l the proceeding.
i i
23 '
That has never been ruled on.
I don't think any 24 other party has responded to it.
(2) i 25 l JUDGE FRYE:
I didn't think so either.
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what I.was trying to determine.
2 MR. IRWIN:
LILCO did not respond to that 3
motion.
LILCO indicated in earlier pleadings on that
'4 subject that we believed that FEMA functioned as a 5
consultant to the NRC Staff.
That position is on record 6
from an earlier pleading.
7 MR. REIS:
The Staff wants to urge the Board to 8
rule on that motion.
We consider it important.
9 JUDGE FRYE:
The Board is anxious to rule on it.
10 Let me ask the Intervenors if you would let us 11 know tomorrow if you want to respond, and if you do want to 12 respond, get it in my hands by first thing Thursday O
13 morning.
3 i
14 MS. LETSCHE:
We will do that.
15 JUDGE FRYE:
All right.
_i.
16 The FEMA motion to quash I guess is next.
17 We are inclined to deny that.
I don't think that 18 government witnesses are entitled to receive fees.
19 The matter of the return date being out of sync 20 with the cutoff for discovery has been cleared up this 4
21 afternoon.
22 And the third matter was the service.
I take it 23 all these witnesses are personally aware of the subpoenas?
24 MR. CUMMING:
To my knowledge, Judge Frye, all 25 have received copies of the subpoena, completed with the ACE-FEDERAL REPORTERS, INC.
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re turn date, both through correspondence or communication 2
from me, and that is what they have indicated.
They were 3
served by registered mail, as I understand.
4 JUDGE FRYE:
Okay.
We will deny the motion to 5
quash.
6 Now, there was another FEMA matter, the motion to 7
bifurcate.
8 Parties seem to take a little different attitude 9
with regard to that.
The Board doesn't view Contentions 15 10 and 16, or 19 for that matter, as being dispositive of this 11 case.
12 Even if we assume for the sake of argument that
)
13 these contentions are well-taken, that the exercise is not a 14 full participation exercise and that no reasonable assurance 15 finding can be made, it seems to me we still owe it to the 16 Commission to have a hearing and let them know precisely 17 what was accomplished by this exercise.
18 So for that reason we will deny the motion to 19 bifurcate.
20 Now, I see in Item C there is some outstanding 21 nondeposi tion discover;r ma tters.
LILCO's motion to compel 22 l and Intervenors' responses to the second set of 23 interrogatories, 0-486, has now been responded to as of the 24 16th.
So we will get a ruling out on that.
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set of admissions and the third set of interrogatories, we 2
have now a motion to compel on that.
3 So it would seem appropriate, unless the parties 4
want to argue it at this point, to await the response.
5 Then we have LILCO's motion to compel discovery 6
from New York State, which has been granted on the 19 th.
No 7
response has been received to date.
8 Is there a particular problem with that one?
9 MR. ZAHNLEUTER:
I don't think there is any 10 problem, Judge Frye.
I received your order in the mail on 11 Christmas Eve, in the afternoon.
That is the 24th.
12 Soon thereaf ter I went to the people who have rsU 13 control of the documents and the knowledge sought.
They 14 have informed me that they have so far spent five man-days 15 working on the request, and a response will be forthcoming.
16 MR. IRWIN:
What I am interested in, Judge Frye, 17 obviously, is getting it as soon as possible.
Under the 18 rules, New York State has, as I recall, two weeks to respond d
19 to interrogatories, and I assume those interrogatories are i
20 ef fective f rom the time the Board's notice was considered 7
21 received.
22 Their deadline was yesterday.
We have received 23 no request for an extension, and LILCO is not inclined today 24 to ask for sanctions, but I don' t want to be put on Oi 25 indefinite hold.
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JUDGE FF,YE:
I gather from Mr. Zahnleuter's 2
response that the matter is moving ahead, it is not on hold?. t 3
MR.2AHNLEUTER:
.It certainly is moving ahead and 4,'
I will help it' move ahead as soon as I can get back to the.
5i office'in Albany.
6 JUDGE FRYE:
Thank you very much.
7 MS. LETSCHE:
Judge Frye, there is one other 8
outstanding matter which was mentioned earlier.
That is the 9
government's motion to compel production'of documents by 10 l FEMi.
FEMA filed a motion, protective order.
I'believe you 11; have several documents that you've been reviewing in
- 12 camera.
3
\\
13 I know you haven't ruled on'tha't, but we d5 have
, 14 FEMAdehositionscomingupagainbeginning-- is it Monday?
115 Yes, beginning on Monda;y.
So the earlier we can get thase o
.1 16 documents, the more7ptoductive those depositions will'be,,if 17 they are in fact going to U's produced.
i 18 We can at least get a ruling one way' or the 19 other.
20 JUDGE FRYE:
Okay.
21 (Pause.)
J 22 JUDGE FRYE:
We'll pick tha t up tomorrow.
I 23 think that's also a concern to. l' E9_ A.
You'd like to have a
[
^ 24 I ruling on that.
1 25 MR. CUMMING:
Tha t' E correct.
I was just going ACE-FEDERAL REPORTERS, INC.
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to say, with respect to the time frame, I think FEMA can 2
reach early accommodation on when the witnesses would be 3
deposed as a panel.
~4 And assuming that we have an early determination 5
. that all those witnesses would be deposed that were 6
previously mentioned, Eor Husar on the 20th and Richard 7
Donovan on the 20th were the first ones for which there was 8
no reported conflict.
9 So it would give the Board a little bit of time.
10 But, obviously, Intervenors need the documents if they're 11 going to get them sometime prior to the deposition.
12 JUDGE FRYE:
The other problem is that I have a i
O 13 hearing next week in another case.
He'll try to ge t that J
14 out by Friday.
If we can' t get it out by Friday, I'll let 15 the parties know so they'll be advised.
16 Okay, is there any other pending motion that I 17 have neglected to mention at this point?
18 There is a pending motion to compel against 19 Staff, but I gather the Staf f's response to tha t motion, 20 which I saw today, pretty much takes care of i t.
21 MR. BORDENICK:
That's my understanding.
22 MR. IRWIN:
As Mr. Bordenick indicated, by 23 consent, the staff has made two witnesses available who will 24 be deposed on Friday, the 16th of January.
That plus the O
P 25 staff's written response is satisfactory from LILCO's ACE-FEDERAL REPORTERS, INC.
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standpoint.
2 MR. BORDENICK:
Just to complete the record on 3
that, did we agree to 9 o' clock or 9:30?-
4 MR. IRWIN:
I t doesn' t matter.
5 MR. BORDENICK:
Nine o' clock, Room 6110 of the 6
_ Maryland National Bank building.
We're talking about the 7
Staff's witnesses who are being made available pursuant to 8
LILCO's discovery request of the Staf f.
Messrs. Schwartz 9
and Weiss on the 16th of January, 1987, at 9 a.m.
in the 10 morning.
This is for deposition.
11 LILCO will depose these two witnesses at 9 a.m.,
12 Room 6110, Maryland National Bank building.
I think tha t 's O
13 7735 Old Georgetown Road, Bethesda, Maryland.
14 MR. ZAHNLEUTER:
I want to note for the record 15 that I object to that scheduling because it conflicts with 16 another scheduled deposition.
This is the first that I've 17 heard of that date and time.
18 MR. MILLER:
The County joins in that objection, 19 Judge Frye.
This is the first time, to my knowledge, where 20 you have the Staf f and LILCO discussing depositions to the 21 exclusion of the other parties.
We intend to be at those 22 depositions, but we have a deposition scheduled for that 23 day; we can't be everywhere at once.
24 I think Mr. Zahnleuter and we don' t appreciate 25 the way that schedule was negotiated, l
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MR. BORDENICK:
I'm perfectly willing to talk to 2
the County and the Sta te, although as I indicated before, I 3
am somewhat surprised that they don't have people available 4
to cover it.
The depositions are going to have to take 5
place, either next week -- I'm sorry -- this week or nex t 6
week, because Mr. Weiss is not going to be available to be 7
deposed the following week.
8 MR. MILLER:
We have to cover the six other 9
depositions.
10 MR. BORDENICK:
Why do we waste the Board's time?
11 I'm perfectly willing to get toge ther with you.
12 JUDGE FRYE:
Why don't you talk about that?
The
-~
13 Board is not inclined to disturb the schedule.
14 Anything else we need to take up?
15 MR. IRWIN:
Judge Frye, just preliminarily, I am 16 assuming that the Board intends at this point to hold the 17 hearings in the New York State Office Building at Hauppage.
18 One thing I wish to put on the record is tha t 19 LILCO has requested office space of New York Sta te's 20 counsel, as has been granted in the past to LILCO and the 21 Staff.
And to Intervenors during the course of the 22 l hearings.
23 I have not been able to get an answer from 24 Mr. Zahnleuter assuring that there would be space, although 25 :
he assured me that he would give it his best efforts.
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I just want to make clear for the record that 2
LILCO will absolutely need to have some kind of staging area 3
in the building in which hearings are conducted.
4 I just want to put everybody on notice of that 5
right now, that we are going to need assurances from New 6
York State better than we've been able to get to da te.
7 We've got the burden of proof.
We ' ve go t the 8
witnesses.
We've got to put on our testimony.
And it's 9
perfectly obvious what the problem is.
10 JUDGE FRYE:
Is that the concensus of all the 11 parties, that we should commence the hearing in Hauppage?
12 MR. MILLER:
It should be on Long Island.
13 JUDGE FRYE:
I was taking it as opposed to 14 somewhere else on Long Island.
15 MS. LETSCHE:
I think Hauppage is generally 16 convenient.
That's where we've had them in the past, and I
17 that's where suffolk County would prefer to have them.
18 MR. IRWIN:
If LILCO doesn't object to that 19 l facility.
If, however, facilities are not available, there 20 are federal facilities on Long Island, located in Northport, 21 Mineola, Uniondale.
And their availability could be 22 i investigated if need be.
23 !
LILCO is not proposing that at this point.
All l
(m 24 we're suggesting is we need to discuss that with the other 1
i 25 parties.
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MR. BORDENICK:
I really don't have anything to 2
add, but I think that Judge Paris thought I was going to 3
jump in here.
I will add, however, since I'm already 4
speaking, that it seems to me tha t mos t, if not all, of the 5
previous hearings were held in Hauppage, and that seems to 6
be a satisfactory place.
7 I certainly agree with Mr. Irwin's suggestion 8
that all the parties, not just LILCO or the staf f or the 9
County or the Sta te, should have some sort of facilities 10 because this is going to be a hearing where you need to 11 store documents and meet with witnesses, and that sort of 12 thing.
-s 13 JUDGE FRYE:
Parties are in a much better 14 position, I think, to judge what facilities are available 15 and where.
And we'll wait to hear further from you.
16 JUDGE SHON:
I recall that we did use County 17 facilities both at Hauppage and Riverhead at one time.
In 18 my view, they weren't quite as satisfactory as the New York 19 State facility.
20 MR. ZAHNLEUTER:
I would like to add tha t I have 21 relayed the parties' requests for space at the state of fice 22 building to the authorities who control that space.
23 They have told me that depending on the actual 24 dates of the hearing, that space probably will be
~
25 available.
But it depends on the dates of the hearing.
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JUDGE FRYE:
Do you know what dates it's not 2
available at this point?
3 MR. ZAHNLEUTER:
I know that I've been told that 4
at least on Fridays, there is a surrogate court that is in 5
that same courtroom.
6 Now, I think that, in the past, the Board has 7
contacted the authorities directly and worked out scheduling 8
matters such as that between yourselves.
I think that would 9
be the most appropriate way to proceed at this time.
10 JUDGE FRYE:
All right.
We'll call and find out 11 what the schedule looks like.
12 MR. ZAHNLEUTER:
I think that they are waiting 13 for information as to when a date certain might be needed so 14 that thcy can then either adjust who is using the courtroom 15 or tell you that it is or is not available.
16 JUDGE FRYE:
I see.
17 MR. IRWIN:
I guess the other aspect of that is, 18 to the extent that space is available to i.he parties, I 19 think it's going to have to be assumed that it would be 20 needed to be continuously available, because people will 21 store documents.
I guess we need to know.
22 I mean, I'm embarrassed to bring this issue up 23 because it seems to me so self-evident that you can't run a 24 hearing without parties having working space.
But I've just 25 been unable to get any kind of assurance.
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JUDGE FRYE:
Do we need to have this conversation 2
oln the record?
3 MR. IRWIN:
Not any further, I hope.
4 JUDGE FRYE:
Anything else we need to discuss on 5
the recordr?
6 (No response.)
7 JUDGE FRYE:
Fine.
We'll adjourn the conference 8
at this point and you can continue to discuss the logistics 9
of having the hearing.
10 (Whereupon, at 4:50 p.m.,
the hearing adjourned.)
11 12 I
l 13 h
14 15 16 17 18 s
19 j l
20 21l 22!
23 24
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CERTIFICATE OF OFFICIAL REPORTER S)
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)
I DOCKET NO.:
50-322-OL-5 PLACE:
BETHESDA, MARYLAND f'N d
DATE:
TUESDAY, JANUARY.6, 1987 i
were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt)
(TYPED) h DAVID L.
HOFFMAN Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation O
.