ML20207S241
| ML20207S241 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/16/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#187-2922 OL-3, NUDOCS 8703190180 | |
| Download: ML20207S241 (40) | |
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l OR G WAL
- O UN11EU STATES NUCLEAR REGULATORY COMMISSION i
IN THE MATTER OF:
DOCKET NO: 50-322-OL-3 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) l TELEPHONE CONFERENCE LOCATION:
WASHINGTON, D.
C.
PAGES:
17310 - 17347 s
DATE:
MONDAY, MARCH 16, 1987
/
Ol ACE-FEDERAL REPORTERS, INC.
OfficialReporters 444 North Capitol Street Y*
8703190180 87031-(
}
PDR ADOCK 05000322 PDR NATIONWIDE COVERAGE
CR30197.0 KI/njg 17310 7-1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
- - - - - - - - - - - - - - - - - -x In the Matter of:
5 Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY 6
TELEPHONE CONFERENCE (Shoreham Nuclear Power Station, 7
Unit 1) 8
- - - - - - - - - - - - - - - - - -x 9
Ace-Federal Reporters, Inc.
10 Suite 402 444 North Capitol Street 7y Washington, D.
C.
12 Monday, March 16, 1987
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l'3 The telephone conference in the above-entitled matter 14 convened at 10:10 a.m.
15 16 BEFORE:
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17 JUDGE MORTON B.
MARGULIES, Chairman Atomic Safety & Licensing Board Panel U.S.
Nuclear Regulatory Commission l
18 l
Washington, D.
C.
20555 I
19 JUDGE JERRY R.
KLINE, Member Atomic Safety & Licensing Board Panel 20 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 21 JUDGE FREDERICK J.
SHON, Member 22 Atomic Safety & Licensing Board Panel U.S.
Nuclear Regulatory Commission 23 Washington, D.
C.
20555 l
l 24
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17311 1
APPEARANCES:
es k
2 On behalf of the Applicant:
3 JAMES N.
CHRISTMAN, ESQ.
4 Hunton & Williams 707 East Main Street P.
O.
Box 1535 5
Richmond, Virginia. 23212 6
On behalf of Suffolk County:
LAWRENCE COE LANPHER, ESQ.
8 CHRISTOPHER McMURRAY, ESQ.
Kirkpatrick & Lockhart 9
Suite 900, South Lobby 1800 M Street, N.W.
10 Washington, D.
C.
20036-5891 11 On behalf of the State of New York:
1 RICHARD J.
ZAHNLEUTER, ESQ.
Deputy Special Counsel to
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13 the Governor Executive Chamber 14 Capitol, Room 229 Albany, New York 12224 15 16 On behalf of Nuclear Regulatory Commission Staff:
17 RICHARD J.
BACHMANN, ESQ.
EDWIN A. REIS, ESQ.
18 GEORGE JOHNSON, ESQ.
Nuclear Regulatory Commission 19 Office of General Counsel Washington, D.
C.
20555 21 On behalf of Federal Emergency Management Agency:
22 WILLIAM CUMMINGS, ESQ.
23 Federal Emergency Management Agency 500 C Street, S.W.
24 Washington, D.
C.
20472 o)
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25 ACE-FEDERAL REPORTERS, INC.
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,ki-1 PROCEEDINGS
'.ts 2
JUDGE MARGULIES:
This is Judge Margulies.
3 We have two motions that we are going to 4
consider in today's telephone conference, one of them being 5
LILCO's motion of March 7, 1987 dealing with compelling 6
Suffolk County in the State of New York to respond to 7
LILCO's interrogatories and requests for production of 8
documents regarding reception centers.
The other is LILCO's 9
motion to strike two newly designated Suffolk county 10 witnesses in a motion dated March 12, 1987.
11 We will take them in order of their filing.
12 Before we start, let us take appearances on the record.
Who
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13 appears for the Applicant?
14 MR. CHRISTMAN:
My name is James N. Christman 15 with the firm of Hunton & Williams, P.O.
Box 1535, Richmond, 16 Virginia 23212.
I am one of counsel for the Applicant, the 17 Long Island Lighting: Company.
18 JUDGE MARGULIES:
Are you appearing by yourself, 19 Mr. Christman?
20 MR. CHRISTMAN:
Yes.
There is no one else here.
21 JUDGE MARGULIES:
It will be satisfactory just to 22 give your names.
23 Who appears for the Intervenors?
24 MR. MC MURRAY:
Christopher McMurray for Suffolk s_/
25 County, Judge Margulies; and with me is Lawrence C. Lanpher.
26 I would just like to confirm also that the Board ace-FEDERAL REPORTERS, INC.
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has received our responses to both of LILCO's motions.
2 JUDGE MARGULIES:
Yes, we.have your responses.
3 Thank you.
4 MR. ZAHNLEUTER:
My name is Richard 5
J.
Zahnleuter, representing Governor Cuomo and the State of 6
7 JUDGE MARGULIES:
Staff?
8 MR. BACHMANN:
For the Staff, Richard 9
J. Bachmann.
Also with me is Edwin A. Reis and George 10 JUDGE MARGULIES:
Is FEMA on the line yet?
11 (No response.)
12 JUDGE MARGULIES:
Apparently FEMA is not there.
s 13 Getting to the March 7, 1987 motion which we have 14 the motion itself and Suffolk County's response, as well as 15 Applicant's correction to its motion, do the parties have 16 anything further to add to the filings?
17 We will start with the Applicant.
18 MR. CHRISTMAN:
Yes.
I have just a couple of 19 points to make on this issue, Judge.
20 JUDGE MARGULIES:
Go right ahead.
21 MR. CHRISTMAN:
As to the timeliness, that seems 22 to me to be a red herring, the timeliness or untimeliness 23 argument.
This is a continuing controversy.
24.
For example, in addition to the earlier request 25 for production that LILCO filed, we have requests for ACE FEDERAL REPORTERS, INC.
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admissions dated March 3rd and a third request for documents 2
dated March 3rd also, the responses of which haven't even 3
come in, which also ask for information about other 4
reception centers under other emrgency plans in New York 5
State.
6 Given the schedule for filing our testimony, 7
which is now due in about two weeks, the only way to get 8
this continuing controversy cleared up is to get a ruling on 9
this issue which is basically one of relevance and which we 10 believe has already been decided several times in the past 11 in LILCO's favor.
Hence, the timeliness argument does not 12 seem to me to be important.
13 JUDGE MARGULIES:
When you say it is not 14 important, do you take a position opposite to that of the 15 Intervenors that the regulations themselves do not require 16 the ten-day filing?
17 MR. CHRISTMAN:
They have cited the ten-day 18 requirement correctly but there are continuing requests of 19 this nature for information about other reception centers in 20 New York State.
There will not be time to have the same 21 objections made by the State and County resolved in time for 22 LILCO to file its testimony and so a ruling from the Board 23 is necessary on this continuing controversy at this time, I 24 believe.
)
25 JUDGE MARGULIES:
In terms of the three requests, ACE. FEDERAL REPORTERS, INC.
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they do differ from one another, do they not?
2 MR. CHRISTMAN:
Yes.
For instance, the first one 3
was broader and when they objected to that we thereupon 4
tried a somewhat narrower request.
Incidentally, that seems 5
to be a point worth making, that it was not unreasonable for 6
LILCO to try different ways of getting some of the 1
7 information we wanted without running to the Board 8
immediately.
And that puts us into the timeliness issue 9
that the County has now raised.
I 10 But in light of the additional requests in 11 particular, I think the timeliness argument is not well 12 taken.
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13 I might also add that I, suppose it would be 14 possible to simply refile the same interrogatories today, l
15 since this is the last day of the discovery period, and then 16 we would have to go through this again, but that would seem 17 to me to be exalting form over substance.
i 18 As to'the relevance argument which we really 19 believe is the key issue here, I do not intend to reargue 20 what we said in our motion which is that this has basically 21 been resolved at least twice before and also numerous other 22 times in rulings on motions to strike and objections made 23 during the original emergency planning hearings in 1983 and 24
'84.
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25 The County has cited one case in which the Board ACE FEDERAL REPORTERS, INC.
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.1 struck certain LILCO testimony on other_ plans, but I think 2
that is one case they cited as altogether in apposite 3
because that was a case where the issue was whether there 4
was a state plan for LILCO's plant and everyone conceded 5
that there was not.
6 I guess the Board decided that the details of 7
other County plans were not relevant to the question of 8
whether there was or was not a State plan for the Shoreham 9
plant.
10 In the present cane, we do have reception centers 11 for Shoreham and we do have reception centers for other 12 nuclear plants in New York State, and it seems to me clearly 13 relevant how New York State treats those other reception 14 centers.
It is relevant in judging the credibility of New
-15 York State as a whole and it is relevant for developing the 16 standards for judging thea adequacy of reception centers and 17 for the other reasons cited in our motion.
18 Finally, as to the -- I think it is Section 3 of 19 our motion to compel where the County has complained 20 generally about the document discovery in the course of this 21 proceeding.
The basis of that motion was simply that the 22 County's February 13 and February 20 -- I should say the 23 Intervenor's February 13 and February 20 responses to our 24 discovery request -- there were cited over ten times the 25 possibility that additional analyses or further analyses ACE FEDERAL REPORTERS, INC.
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would shed light on the issues that might be relied on by 2
the Intervenors; likewise, that the State witnesses' 3
depositions, the State Department of Transportation 4
witnesses, that is, we learned that analyses would be done, 5
although the first meeting to discuss them had only been 6
held apparently the day before, and so they did not have 7.
anything that they could produce at that time.
8 There is the suggestion, therefore, in many 9
cases, the over ten times that I cited, and the fairly 10 concrete suggestion in the case of the deposition, that 11 there are going to be other analyses that the State and 12 County will rely on and will use at hearing.
13 All we have received so far as I know is the 14 material from Dr. Cole about his opinion polls, some 15 marked-up procedures submitted by Sarah Mayland who is one 16 of the State's witnesses, and the resumes for the witnesses, 17 some of which came at the depositions themselves.
18 If the County and State are saying that there are 19 no other documents than those in existence that respond to 20 any of our document requests, then I guess that pretty much 21 resolves it.
But what I think is going to happen is that 22 many analyses are going to be done in a manner that is 23 not going to allow LILCO to use them them to prepare.its 24 testimony which, as everybody knows, is due before anybody 25 else's testimony is.
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We are simply trying to get that information as 2
soon as we can, so as to make the rebuttal phase in this 3
proceeding as short as it can possibly be.
The County has 4
suggested that one of our remedies is rebuttal and I think 5
that given that our testimony is due in two weeks and that 6
we have received no more than we have, I think rebuttal 7
is going to be almost inevitable.
But we are trying to pare 8
it down as much as we possibly can.
I 9
That is all I have to say on the motion to 10 compel.
11 JUDGE MARGULIES:
Thank you.
12 Mr. McMurray?
13 MR. MC MURRAY:
I would like to address the 14 timeliness issue.
Mr. Christman says that this is a red 15 herring.
I don't think that the Commission's rules should 16 be considerd a red herring.
The rules give a ten-day time 17 limit and at least for the first two interrogatory requests 18 and document requests, LILCO has not met that time limit 19 and it has not filed a motion to compel on the first two 20 within the ten days required.
21 The argument that there are two more document 22 requests out there is true.
There are two others out there, 23 but they ask different questions than the first two document 24 requests.
So Mr. Christman is giving the wrong impression s
, -k_)3 25 in saying that he is just asking the same questions 1
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over again.
2 The first two sets of document requests and 3
interrogatories were different.
4 Now, Mr. Christman raises the point that this is 5
a continuing problem that needs to be resolved.
- Well, 6
if they had filed in a timely manner, this would all 7
have been resolved a lot earlier and we would not be here 8
now, on the eve of the part of the schedule when we have to 9
prepare testimony, foghting about whether further discovery.
10 is appropriate.
11 Also I don't believe that Mr. Christman's 12 argument that he can just file another set of discovery
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13 requests today on the same issue is appropriate.
I am not 14 sure that the Board contemplated, today being the last day 15 of discovery, for document requests or interrogatories.
16 I believe that was last Friday -- and that the Board was 17 making an effort to accommodate Mr. Marsh's schedule as far 9
18 as extending discovery one day for his deposition.
i 19 Let me move on to the point Mr. Christman raised 20 about relevance.
The request made by LILCO regarding other 21 plans and others plants are simply irrelevant.
The point 22 that we made in our response regarding the Board striking of 23 testimony on other plans and other plants is directly on 24 point.
25 The state plan for other plants and County plans s
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for other plants simply have no bearing on the issue here 2
which is whether or not those reception centers are 3
adequate.
4 In regard to part 3 of LILCO's motion regarding 5
the general responses that the County and State have made, 6
it is true that in our responses to various interrogatories, 7
we did say back on February 13 and Febrruary 20, that 8
there may be additional analyses that would be turned over 9
when they are done.
10 Now, there are no analyses and there are no 11 documents that fit that description right now.
We have 12 turned over what has been prepared and whatever data has em k-)
13 been collected in order to prepare testimony.
j 14 Now, as far as the State witnesses go, they are
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15 in the process of preparing certain analyses and they are 16 not completed yet.
LILCO is in no different position than 17 the County is in.
I don't know how many times we have heard 18 from LILCO witnesses that they could do additional 19 research, they may do additional analyses.
20 We found out in a deposition on Friday that 21 LILCO has just completed or is about to complete an analysis 22 of reception centers at other centers in New York-State and 23 other County plans and the State plan as it regards 24 reception centers.
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25 That also brings up the point about whether they l
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really need the State plan, but they already seem to have 2
it.
3 We also found out that LILCO is about to conduct 4
a site circulation analysis for the three reception 5
centers.
We don't have that analysis either, and whether 6
or not we are going to have it by the time our testimony 7
is filed is an open question.
8 The problem is we are all in the same boat.
9 These are the circumstances that we have been operating 10 under and LILCO has been operating under, not only in this 11 proceeding but in the exercise proceedings.
We are doing 12 our best to turn over things as they are done.
I am sure
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N 13 LILCO is doing the same.
LILCO has not turned over that 14 much more than the County has.
15 So I suggest that the problem is that analyses 16 are still being done and they take some time to do.
- And, 17 given the schedule that the Board has set, they have not yet 18 been able to be turned over by the time discovery is ended.
19 I have nothing further to say.
20 MR. ZAHNLEUTER:
This is Richard Zahnleuter.
I 21 would like to add a brief statement concerning the 22 Government's timeliness argument, and I apologize in advance 23 if I may be repetitive of the County, but this is an 24 important issue to the State of New York and I will try to 25 limit my comments as much as I can.
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but in the last week and a half, LILCO served the 2
governments with several documents.
We know about the 3
motion to compel the first, second and third sets, compel 4
responses to the first, second, and third sets of 5
interrogatories.
There are a third and fourth set of 6
interrogatories and document requests that are out there.
7 LILCO has also requested to inspect traffic 8
signals at intersections all over Long Island.
LILCO has 9
also filed a request for admissions.
I would like to 10 add that the government has responded to the first set of 11 interrogatories and document requests on January 30th, over 12 a month ago, and to the second set on February 20th.
LILCO fs
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13 filed its motion to compel on March 13th.
14 Our main point is that-LILCO has waited far too 15 long to start pursuing these matters, and now LILCO is 16 unjustifiably attempting to merge the period set aside for 17 discovery with the period set aside for preparation of 18 testimony.
19 Furthermore, due to the expedited nature of this 20 proceeding, the time in which to prepare testimony is 21 short and is upon us now.
Spending time and resources to 22 compile information related to other nuclear power plants 23 will hamper the government's ability to prepare and submit 24 effective testimony.
25 In addition, these resources also must be ACE FEDERAL REPORTERS, INC.
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diverted now to participate in the exercise hearings before 2
the Fry. Board which commence March 10th and are expected to 3
continue four days a week for the next few weeks.
4 The government should not be required to pay the 5
price for LILCO's untimely and unjustifiable delay.
6 The Board should enforce the ten-day time 7
requirement of NCFR 2.740 F1 by which we are all expected to 8
abide, and deny LILCO's motion.
9 In addition, the Board should not allow LILCO to 10 avoid the application of the ten-day rule by filing a third 11 or fourth set of interrogatories and document requests 12 asking for the same information as the first and second set.
13 I could go through and read you how they are 14 similar but I think I could point it out adequately by 15 stating that in the first set, item No. 11 asks for lists of 16 all relocation centers and care centers and other nuclear 17 power plant planning matters.
In the second set,. items 18 No. 37, 38, 39 asks for the same information.
In the third 19 set, items 2 and 3 ask for the same information.
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20 So it appears that LILCO was aware of the ten-day
-21 time limit for motion to compel, and has simply tried to 22 avoid the application of the rule by filing further 23 discovery requests at a time that is a period set aside for 24 preparation of testimony.
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25 So, in conclusion, I would like to ask the Board ACE FEDERAL REPORTERS, INC.
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to apply the ten-day time requirement of the rules to LILCO, 2
just as the Board would apply it to all of the other 3
parties.
4 I have nothing further.
Thank you.
5 JUDGE MARGULIES:
Mr. Bachmann?
6 MR. BACHMANN:
Yes, sir.
As the Staff stated in 7
its March 11 letter, because that is a discovery between 8
the Intervenors and the Applicants, Staff will take no 9
position.
10 MR. ZAHNLEUTER:
May I also add that it appears 11 from the DeVerio deposition that LILCO already has the 12 information requested in the third set of interrogatories; 13 that is, the State and the County plans.
I recall that they 14 provided that to LILCO in 1984 in the planning hearings.
15 Also, it appears that because the LILCO 16 consultant is compiling an analysis of relocation centers in 17 New York State, that LILCO already has access to this 18 information and these interrogatories are just not needed by 19 LILCO at this time.
20 MR. CHRISTMAN:
Since everyone else seems to be 21 through, can I address a couple of those points?
There were 22 a couple of misstatements there.
23 JUDGE MARGULIES:
You may proceed.
24 MR. CHRISTMAN:
The State plan we have, which 7,
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witnesses' deposition of a couple of weeks ago is probably 2
not current.
We do have a copy of the State plan that the 3
State provided us back in '84.
We believe there have been 4
revisions and the State witnesses said that there have been 5
revisions.
6 The second point:
I just don't know what 7
Mr. Zahnleuter means that we have already got the 8
information.
We have a person searching the Public Document 9
Room for certain information.
That is, the NRC Public 10 Document Room.
I do not know whether he has found anything, 11 and I doubt whether he has found the information that we are 12 seeking from the State.
We do not have any documents on
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13 that that I know of.
14 Finally, the Board will have noticed that 15 Mr. McMurray said that last Friday was the last day to file 16 discovery requests and Mr. Zahnleuter is saying that the 17 requests we filed were untimely, so that there is an 18 inconsistency between the State and the County as to when 19 our discovery rights were cut off.
But apparently in the 20 State view, there was some unspecified time back before last 21 week.
22 Finally, as per the frequent protestations thatwe 23 are all in the same boat and we all should be preparing 24 our testimony, I will remind everybody that LILCO's 25 testimony is due two weeks earlier than anyone else's and we ACE-FEDERAL REPORTERS, INC.
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are not in the same boat in that respect at all.
2 The extent of the litigation, the number of 3
issues being raised in this very small proceeding regarding 4
reception centers is entirely the Intervenors' doing and 5
they really should not complain of the stresses on their 6
time and resources because of issues that they themselves 7
have raised.
8 Likewise, they can hardly complain about the 9
stresses being imposed by the 05 proceeding when that is 10 again a matter of their own doing.
I might note that the 05 11 proceeding lost a day of hearings today because of 12 Mr. Zahnleuter being unable to attend the hearing because of i
s/
13 the deposition of Langdon Marsh, af ter the deposition of 14 Langdon Marsh itself because of the 05 proceeding, i
15 That is all I have to say.
16 JUDGE MARGULIES:
The Board will confer among 17 themseleves to determine if they have any further 18 questions.
19 (The Board confers from 10:30 to 10:40 a.m.)
20 JUDGE MARGULIES:
We are back on the record.
21 The Board is ready to rule on the first motion that was 22 filed.
23 The Board rules that the first two requests for 24 information, one filed on January 16th and the second one 25 filed on February 4th, the Board finds they are untimely and ACE FEDERAL REPORTERS, INC.
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will not consider them further.
2 As to the third reuquest, I believe filed on 3
March 3rd, the Board finds that the request has been timely 4
filed.
The Board further finds that the information 5
sought is relevant.
The parties will be compelled to 6
respond to the third set of interrogatories.
7 MR. CUMMINGS:
Judge Margulies, this is William 8
Cummings for FEMA and I am just coming on.
9 JUDGE MARGULIES:
Yes, sir.
10 MR. CUMMINGS:
Don't interrupt where you are, 11 please.
l '!
JUDGE MARGULIES:
In regard to the request for x
13 production of documents, we see the parties being in the s
14 same position as further ff. lings may or may not come in.
To 15 the extent they will come in, it is problemmatical.
We 16 would have the parties treat these as a matter of rebuttal.
17 In terms of passing on the initial portion of the 18 motion as to how to treat the Intervenors' response to the 19 third set of interrogatories as well as the later documents 20 to come in, we expect the parties to communicate withe 21 the Board and to advise us as to how they propose to submit 22 this information as rebuttal.
23 MR. CHRISTMAN:
Judge Margulies, this is Jim 24 Christman.
I'm sorry; have you finished?
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25 JUDGE MARGULIES:
Yes, I have.
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MR. CHRISTMAN:
May I ask a question?
2 JUDGE MARGULIES:
I understand, I think, the 3
ruling as to the third request.
There is a fourth 4
request for the revised State plan that we discussed that 5
came in last week.
I am not sure how it applies to that 6
particular request.
7 I think your ruling covers the third request and 8
the request for admissions, which was I think filed on the 9
same date, and I think may not address the March 13th fourth 10 request which asked for the--
11 JUDGE MARGULIES:
No.
The ruling did not cover 12 the March 13th request.
We will have to look at that.
13 MR. CHRISTMAN:
It covers the two March -- I am 14 getting dates mixed up here -- I believe the two March 3rd 15 requests then, the request for documents and the request for 16 admissions.
17 JUDGE MARGULIES:
Would you just hold on, please?
18 MR. CHRISTMAN:
Sure.
19 (Pause) 20 JUDGE MARGULIES:
This is Judge Margulies again.
21 Is that request mentioned in your March 7th motion, 22 Mr. Christman?
23 (No response.)
24 MR. MC MURRAY:
This is Chris McMurray.
Was
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25 there a response to that question?
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JUDGE MARGULIES:
I didn't get a response.
2 MR. CHRISTMAN:
Yes.
Yes, sir.
The March 3rd 3
request was mentioned in the motion specifically, and I-4 think the March 3rd request for admissions was not.
5 JUDGE MARGULIES:
Well, that's the problem and 6
we didn't treat with it.
7 MR. CHRISTMAN:
Okay.
So your order just 8
covers the March 3rd request for production of documents 9
then.
10 JUDGE MARGULIES:
That is correct.
It's the 11 document you filed on March 7th and whatever is included in 12 that ten-page document.
13 MR. CHRISTMAN:
Fine.
I understand.
14 JUDGE MARGULIES:
At the present time we don't 15 have the other documents before us.
Could you tell us what 16 the nature of that filing was?
17 MR. CHRISTMAN:
It was dated the same date, March 18 3rd, and it simply asks for two requests for admissions on 19 the same general subject.
It asks to admit or deny that 20 other reception centers in New York State either do or do 21 not have SPDES permits and Environmental Impact Statements 22 under state law, which are the two issues about 23 environmental law that have been raised.
24 JUDGE MARGULIES:
And you did not file any motion 25 in connection with that.
I l
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MR. CHRISTMAN:
That is correct.
2 JUDGE MARGULIES:
We are just ruling on the 3
motions that we have before us.
4 MR. CHRISTMAN:
That's fine.
I understand.
6 JUDGE MARGULIES:
Weald you just give us a moment 6
to consult?
7 (The Board confers among themselves.)
8 MR. CUMMINGS:
While the judges are conferring, 9
you are on for Hunton & Williams.
Is anyone else on?
10 MR. CHRISTMAN:
Don Erwin has come into the room 11 just now, but no, there is no one else on.
12 MR. CUMMINGS:
Okay.-
Would you tell Mr. Erwin I-13 would like to talk to him after the conference call?
14 And Chris McMurray is on for --
15 MR. MC MURRAY:
That's right.
16 MR. CUMMINGS:
Is anyone else on with you, Chris?
17 MR. MC MURRAY:
Yes.
Larry Lanpher is here.
i 18 JUDGE MARGULIES:
The Board is back on the 19 record.
We will now move to LILCO's motion to strike two 20 newly designated Suffolk County witnesses, dated March 12, 21 1987.
We have suffolk County and the State of New York's 22 opposition to LILCO's motion to compel.
23 As a preliminary matter, we would like to address 24 this to Mr. Bachmann.
25 Is it your intention, Mr. Bachmann, to raise the ACE FEDERAL REPORTERS, INC.
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matter of probabilistic risk assessment consequence analyses 2
and similar. technical analyses in the. testimony you intend 3
to introduce?
4 MR. REIS:
This is Mr. Reis.
In a very limited 5
way in looking at where monitoring would be necessary,-in 6
that limited way, normally in this proceeding the Board 7
rules that general questions of the basis-for emergency 8
planning regulations were not to be for litigation.
That 9
was in striking the regulations involving the 20-mile EPZ, 10 et cetera.
11 We are, of course, bound by those formal 12 rulings.
However, it has been the experience of people
('/T 13 that will require monitoring -- in other words, whether s-
[
14 people-would require monitoring or be evacuated before there 15 were any releases from plants, or from sectors where there
[
16 were nor releases, to that limited extent we would --
17 MR. CHRISTMAN:
I'ms sorry.
This is Jim 18 Christman.
We may have lost somebody.
The last part of the 19 sentence was cut off.
Can anyone still hear us?
20 MR. REIS:
Yes, we hear you.
21 MR. CHRISTMAN:
I 'm sorry, Ed.
We did not hear 22 the last part of your sentence.
23 MR. REIS:
What I was saying was we would not be 24 going to probabilistic risk assessments as a whole, but only 25 to see what percentage of the population would possibly be
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matter of probabilistic risk assessment consequence analyses 2-and similar technical analyses in the' testimony you intend _
~
3 to introduce?
4 MR. REIS:- This is Mr. Reis.
In a very limited 5
way_in looking at where monitoring would be necessary,'in 6
that limited way, normally in this proceeding the Board 7
rules that general questions of the basis for emergency 8
planning regulations were not to be for litigation.
That 9
was in striking the regulations involving the 20-mile EPZ, 10 et cetera.
y 11 We are, of course, bound by those formal i
E12 -
rulings.
However, it has been the experience of people 13 that will require monitoring -- in other words, whether 14' people would require monitoring or be evacuated before there 15 were any releases from plants, or from sectors where there 16 were nor releases, to that limited extent we would ---
17 MR. CHRISTMAN:
I'm sorry.-
This is Jim 4
18 Christman.
We may have lost _somebody.
The last part of the l
19 sentence was cut off.
Can anyone still hear us?
l 20 MR. REIS:
Yes, we hear you.
21 MR. CHRISTMAN:
I'm sorry, Ed.
We did not hear i
22 the last part of your sentence.
23 MR. REIS:
What I was saying was we would not be 24 going to probabilistic risk assessments as a whole, but only j (
25 to see what percentage of the population would possibly be i
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exposed to.radiaEion so as to require monitoring from the
~
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2 EPZ.
-(Pa's%.)
.3 u
MR. REIS:
Are you there?
4 s
5 JUDGE *NARGULIES:
The Board is here'and just
.~.
6 considering your comments and trying to determine how w
N
.7 relevant that proposal is, whether it really has a place in T
8 the hearink, and if it doerin't then it can solve a lot of problemsforusinthisothekmotion.
9
- n 5 <,.
10 JUDGE SHON:
This is Judge Shon.
(<
-11 MR. CHRISTMAN:
Judge Shon, I'm sorry; we c'an't 12 hear you.
13 JUDGE SHON:
Is this any better?
14 MR. CHRISTMAN:
Only slightly.
15 JUDGE SHON:
All right.
How about that?
16 MR. CHRISTMAN:
Much bettsr; thank you. /
s
'17 JUDGE SHON:
,F'd like to have Mr. Reis address 7
' 18 "
briefly the connection between.probabilistic risk' assessment 19 and the anticipated number of people that you spoke about a 2 0,.
moment ago.
It is unclear to me that-these things are in 21 any sense bound up... I can see that one might generats some 22 sort of curve of ability versus the number of people you
~;
y 23_
have got to monitor or something.
1*
d j.
24 Are you intending to do something like that or
' n V
25 what?
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MR..REIS:
One second, Judge Shon.
2 Mr. Bachmann.will address your question.
3
'MR. BACHMANN:
Basically'the way I understand it.
4-
-- and I am not that technically qualified in this area --
5-probabilistic area comes into effect basically in the 6L meterological sense.
7 JUDGE SHON:
I see.
So you are just interested 8
Lin, say, the probability of the meteorology -- informed as 9
to the number of people that you might want to monitor under 10.
various meteorological conditions.
Is that it?
11 MR. BACHMANN:
From what I understand, that is 12
-the main input.
Mr. Hohlman intends to create or at least r~
(N) 13 calculate out what he terms the footprints that were based 1
14 on certain sectors.in the EPZs, the demogrphics, and the 15 probability, for instance, of the wind blowing in a given 16 direction at a given time.
17 JUDGE SHON:
I see.
So what he is going to 18 assess is the probability of a given footprint in effect.
19 MR. BACHMANN:
That is correct.
I-20 MR. MC MURRAY:
Excuse me, Judge Shon.
This is l
21 i Chris McMurray with Suffolk County.
l
- 22 I believe that Mr. Hohlman also stated in his l
23 deposition that he was going to be discussing source terms 24 and the other sorts of things that go into a PRA and
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' k_/
25 consequence analysis, including the type of ACE FEDERAL REPORTERS, INC.
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radionuclides that come out, et cetera.
It is not our 2
understanding that he was just going to be limited to 3
meteorology.
4 Now, maybe Mr. Bachmann has a'different 5
understanding, but that is not what came out in the 6
deposition.
7 MR. BACHMANN:
Certainly he will be taking into 8
account and relying upon the great published literature as 9
far as source terms are concerned.
However, his main 10 calculation is not what you call, quote-unquote, 11 probabilistic risk assessment; rather, a traditional 12 probabilistic analysis, probably upon meteorological events.
(~T
's_)
13 MR. REIS:
In that connection, the Staff is not 14 revisiting 0396.
15 JUDGE SHON:
We recognize, Mr. Reis, that you are 16 not revisiting 0396 and that you are not going to discuss 17 matters such as the shape of the emergency plan zone.
18 JUDGE MARGULIES:
Mr. Christman, do you wish to
~
19 add anything to your motion in view of what you are hearing 20 from Staff?
I mean do you want to add anything to your 21 motion and take into consideration anything that you heard 22 from Staff?
l 23 MR. CHRISTMAN:
No.
I will allow that as I l
24 recall, Mr. Hohlman said that his calculations are only
(~3 l
s_/
25 to give perspective to the issue and that it seems to me l
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that since he did cite the Ben Lason work that was done for 2
Suffolk-County earlier, that the County could have 3
decided early on to have put in its own testimony of this 4
sort and that the late designation of witnesses is therefore 5
not appropriate.
6 But the real basis of our motion is that it 7
seemed to us that the Intervenors are once again 8
unilaterally evading a Board order discovery cutoff and that 9
was the reason for the motion.
10 That is really all I have to say, 11 JUDGE MARGULIES:
Mr. McMurray.
12 MR. MC MURRAY:
Yes.
First I would like to 13 address Mr. Christman's last comment.
I think it is 14 improper for LILCO to accuse the government of unilaterally 15 trying to evade a Board order when he knows very well that 16 this issue came as a complete surprise to everyone.
17 We agree with the questions the Board has 18 raised about the relevance of PRA consequence analyses to 19 this question.
And on its face, the issue of how many 20 people'are going to go to the reception centers just does 21 not evoke visions of these sorts of these sorts of 22 technical analyses.
23 But they have been raised by the Staff.
We are 24 not trying to evade any Board orders.
What we are trying to 25 do is to protect our rights, and if the Staff is going to be ACE-FEDERAL REPORTERS, INC.
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raising issues of PRA consequence analyses, then.we have a 2
'right to address those analyses.
3 We haven't even gotten the analyses as yet, 4
but from what I understand from Hohlman, it is not just 5
going to be used in the' limited fashion that Mr. Reis 6
states; rather, it is going to form a substantial part of 7
the Staff's testimony.
8 Now, if they are going to raise this, we have'a 9
right to present our own witnesses who can examine 10 these analyses and, if necessary, rebut them or argue 11 that they are irrelevant-to the questions before the Board.
12 We had no idea that these questions were being raised.
13 If we did, we would have identified these witnesses earlier.
14 We have been acting in good faith.
I don't think 15 it proper to accuse the County of doing otherwise.
16 JUDGE MARGULIES:
Mr. McMurray, if the Staff only 17 intends to raise these matters in limited fashion, would 18 that have any effect on the number of witnesses you wish or 19 expect to produce?
20 MR. MC MURRAY:
Judge Margulies, we have 21 identified the two witnesses that we would expect to address 22 any issues raised on PRA consequence analyses.
We don't 23 expect to identify any more.
24 As you know, Mr. Minor has already been 25 designated as a witness.
Mr. Sholley is the only new Ace FEDERAL REPORTERS, INC.
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witness.
2 We would expect him to address the scope of the 3
NRC's testimony, whether that scope is limited or 4
extensive.
We have no way of knowing right now and frankly 5
I didn't understand Mr. Reis's explanation of the testimony 6
in light of what Mr. Hohlman said.
7 JUDGE SHON:
Mr. McMurray, what would be sort of 8
the mechanics and logistics of this?
Would you expect to 9
review the Staff testimony and then present these people as 10 rebuttal witnesses, or prepare testimony in advance?
11 How do you know the extent to which'they are 12 going to be dabbling in PRA, so to speak?
How would you A
(_/
13 know that and what would you do?
14 MR. MC MURRAY:
Well, you raise a good point, 15 Judge Shon.
Obviously, we haven't even seen the analyses 16 yet, and as of the time of the deposition Mr. Hohlman had 17 not even put pencil to paper.
18 I think initially -- well, we are thinking of two 19 different possibilities.
One is to write testimony for our l
20 original submission on April 13th that would address the 21 issues raised by the NRC as far as we know them from the 22 deposition.
23 That would be the usefulness of PRAs for this 24 type of question, whether they would give an adequate view
()
25 of the number of people who might need monitoring, ACE FEDERAL REPORTERS, INC.
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et cetera.
2 We would also have to keep open the possibility 3
of filing rebuttal testimony with respect to any data or 4
information or arguments that have not yet been given to the 5
County.
6 As you know, this is something that is completely 7
new within the last week or so as far as an issue in this 8
proceeding, and we really have not had a chance to think 9
about what our testimony is going to be or what our rebuttal 10 testimony is going to be.
11 JUDGE SHON:
Mr. Christman, would you have us 12 then strike these two witnesses, so to speak, in their 13 entirety before we even know what they are talking about?
14 MR. CHRISTMAN:
Yes, sir.
The basis was the 15 continuing erosion, I guess, of the Board-set schedule.
And 16 we believe that was appropriate.
17 JUDGE MARGULIES:
Mr. McMurray, do you want to go 18 back to Mr. Reis and see if he could clarify his position 19 from that of the witness or what the witness indicated?
20 Would that help you any?
21 MR. MC MURRAY:
In what respect?
I 'm sorry.
22 With respect to what kind of testimony they are going to 23 file?
24 JUDGE MARGULIES:
No.
Just a general 25 clarification because of the difference as to what this 4
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testimony would involve.
2 MR. MC MURRAY:
Certainly to the extent that the 3
Staff can supplement the information that they have already 4
given us regarding the Staff witnesses' testimony, that 5
would be helpful and it would help us to shape our 6
testimony.
7 Let me add that if the Board will rule that we 8
have the right to file rebuttal after the Staff has filed it 9
and the issues are focused, and the extent to which they are 10 going to be addressing is focused, we have no problem with 11 waiting until-the Staff has filed and then filing rebuttal 12 testimony that will only be addressing the scope of the 13 issues that they raise.
1 14 MR. BACHMANN:
That.makes sense to the Staff.
15 MR. CHRISTMAN:
I assume that that would be only 16 upon good cause shown, rather than an absolute right.
17 MR. MC MURRAY:
I think the good cause has been 18 shown already.
19 MR. CHRISTMAN:
I don't agree with that.
We 20 don't know what the Staff's filing is and until you see the 21 Staff's filing we can't tell if you've got good cause or 22 not.
23 MR. CUMMINGS:
Judge Margulics, FEMA would i
24 represent that this proceeding already is structured
(^h
\\_/
25 primarily by the Board's order of December 11 and the l
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original contention 24.0.
2 I don't understand, based on my knowledge of NRC 3
procedures, how it can be that a contention is allowed to 4
essentially and substantively be modified as you go with 5
respect to issues.
And that sounds to me like in essence 6
what has happened.
7 If the Board is concerned that something beyond 8
the scope of its original order is going to in fact be 9
required to be litigated, then it is appropriate to have 10 formal modification of the contention and the issues.
11 FEMA is left in a position where it's a shifting 12 target, and the reason I am concerned about this OL3 m
(_)
13 proceeding, very concerned about it, is because it goes to a 14 core issue on emergency planning that FEMA has to 15 understand, and we have to understand what the Board's 16 concerns are and the parties' concerns are so that we can 17 implement our role in the future.
18 MR. MC MURRAY:
Mr. Cummings has not been 19 involved in the background to this particular controversy, 20 but I will just state that this was not an issue that was i
21 raised by the County.
This is a new issue raised by the 22 Staff which we have to be able to respond to if the Staff is 23 going to put in testimony on it.
1 24 That's our only point.
(
25 MR. CUMMINGS:
Basically it seems to me that the ACE FEDERAL REPORTERS, INC.
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Intervenors have been on notice as to what the scope of the 2
Board's original order was from day one and knew what 3
witnesss it had to present.
ll Basically now that's the issue, whether late 5
filed witnesses, there are standards before NRC or there are 6
not.
7 MR. BACHMANN:
I have nothing further to add.
8 JUDGE MARGULIES:
Do you wish to add anything, 9
Mr. Reis?
10 MR. REIS:
No, Your Honor.
11 JUDGE MARGULIES:
We will take the matter under 12 consideration, discuss it, and see if we have any further 13 questions.
If not, we will come up with a decision.
14 (The Board confers among themselves.)
15 (Telephone connection to some of the parties lost 16 and reestablished.)
17 JUDGE MARGULIES:
This is Judge Margulies.
18 Judge Shon had to go to the airport, and we will try 19 to finish this as quickly as possible.
j 20 The motion on the two newly designated witnesses 21 denied.
We are going to do our best to keep to the 22 schedule.
23 Is there any possibility of the parties going i
24 ahead with their cases as best they can and, if necessary, 4
l()
25 go to rebuttal?
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MR. CHRISTMAN:
Judge Margulies, this i Jim 2
Chrisman.
Yes.
We are very interested in preserving the-3 schedule as well.
We can live with the existing schedule.
4 It seems to me that what was discussed earlier would be 5
appropriate, which is that if once they see the Staff 6
testimony -- and we all agree there seems to be some 7
disagreement about what that Staff testimony will say --
8 then the. County and State should be able to mvve for 9
rebuttal testimony for good cause shown, just like LILCO 10 will be able to move for rebuttal testimony for good cause 11 shown if we haven't seen the State traffic analysis in time 12 to address it in our principal case.
13 MR. MC MURRAY:
This is Chris McMurray.
I think 14 that in order for this proceeding to proceed rationally and 15 without a lot of wasted time, we need a ruling right now 16 that we are going to have a right to file rebuttal testimony f
^
17 once the NRC's testimony comes in.
Otherwise we are placed 18 in this predicament that we are going to have to wallow i
19 around and try to find out what the NRC's case is, and in 20 cur direct testimony file some sort of response, and then 21 wait to see when it comes in and see if we are going to need 22 to file rebuttal testimony.
23 I do not think we should be put in that 24 predicament.
We have no problem filing rebuttal testimony,
()
25 but we would like a ruling now that we are going to have a ACE FEDERAt. REPORTERS, INC.
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right to file it if the NRC Staff address consequence 2
analyses so that we can all work to keep wasted effort down 3
to a minimum.
4 JUDGE MARGULIES:
Do you object to that, 5
Mr. Christman?
6 MR. CHRISTMAN:
Yes.
I don't see how the Board 7
can rule in advance that the County has a right to file 8
rebuttal on a piece of testimony none of us has seen yet.
9 MR. MC MURRAY:
It is fairly clear what that 10 testimony is going to address in genearal.
I think the 11 Board has enough basis right now to make a ruling.
12 MR. CHRISTMAN:
This is Jim Christman.
I heard 13 three or four different versions of what that testimony is 14 going to say and I just do not think the Board ought to give 15 an absolute right in advance to file rebuttal testimony.
16 MR. MC MURRAY:
I have said my piece.
17 JUDGE MARGULIES:
Just one minute.
18 (Pause.)
19 JUDGE MARGULIES:
Mr. Christman, is it your 20 intention to take depositions or are you willing to forego 21 that?
22 MR. CHRISTMAN:
We had planned to take 23 depositions starting this Wednesday with Mr. Sholley and we 24 haven't been given a time yet for Mr. Minor.
25 It's difficult to know, isn't it?
We have not ACE-17EDERAL IlEl'ORTERS, INC.
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yet seen the NRC Staff testimony.
We don't know whether the 2
County will be able to show good cause and we certainly 3
don't know whether we will have to address anything in 4
either of their testimony until we see that.
5 We do not plan to present a PRA witness.
I can 6
say that, based on what we heard at the Staff depositions.
7 JUDGE MARGULIES:
What would happen if you didn't 8
deposed the two witnesses and just let things take their 9
normal course?
10 MR. CHRISTMAN:
I'm afraid I have to think out j
11 loud on this, but the Staff will file their piece of 12 testimony.
The County and State will move to show good 13 cause.
If good cause is shown, they would then file their 14 rebuttal testimony, and then LILCO at that point would have 15 to decide whether we needed to file something of our own, 16 and also we would need to decide whether to ask for 17 additional discovery.
18 I guess I would be willing to forego depositions 19 at this time, in part because I believe that the County 20 witnesses will not have very much to say at a deposition at i
21 this time and leave it up to LILCO to have to show good j
22 cause after we see the other parties' filings, both for l
23 additional testimony by LILCO and additional discovery or 24 depositions by LILCO if good cause is shown.
(
25 In short, I am willing to live by the good cause l
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standard and forego the depositions at this time.
2 JUDGE MARGULIES:
How does that sound to the 3
other parties?
4 MR. MC MURRAY:
The only problem we have again is 5
a ruling from the Board which will let us determine whether 6
or not we should be filing for testimony on April 13th about 7
this matter or whether we will be permitted to file rebuttal 8
testimony after that time.
9 We need a ruling from the Board that there is 10 good cause for us to file rebuttal testimony after we have 11 read the Staff testimony.
Otherwise we are going to have to 12 file sone sort of testimony based on what we know now and 13 then '.ry and file some rebuttal testimony based on more 14 specific information later.
I think that is inefficient.
15 JUDGE MARGULIES:
If LILCO is not going to pursue 16 depositions, then the proceeding just follows its normal 17 course and it is up to you to do what you want.
18 You don't need advance permission for anything.
19 MR. MC MURRAY:
That's right.
20 JUDGE MARGULIES:
Am I correct then that LILCO is 21 not going to pursue deposing the two witnesses?
22 MR. CHRISTMAN:
Yes, that is correct.
But to the 23 extent I can, I would like to preserve my right to file a 24 request for discovery for good cause shown in the future if
~
25 it appears that there is good cause, which I think is a ace FEDERAL REPORTERS, INC.
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right we always have anyway.
2 JUDGE MARGULIES:
I believe that is the normal 3
standard.
4 MR. CHRISTMAN:
That's right.
So with that S
understanding, we are willing to not attempt to take 6
depositions before the filing of our testimony on March 7
30th.
8 JUDGE MARGULIES:
Our ruling therefore is the 9
motion of March 12th is denied and no further action will be 10 taken by the Board in terms of setting up times for the 11 taking of depositions of two witnesses because LILCO is not 12 going to depose those two witnesses.
13 Is there anything further?
I 14 (No response.)
15 JUDGE MARGULIES:
There being nothing further, 16 the conference call is closed.
Thank you very much.
17 (Whereupon, at 11:40 a.m. the conference call was i
18 completed.)
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CERTIFICATE OF CFFICIAL REPORTER O
his is to certify - that the attached proceedings before T
the UNITED STATES NUCLEAR REGULATORY COMMISSION in.the matter of:
NAME OF PROCEEDING:
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
DOCKET NO.:
50-322-OL-3 PLACE:
WASHINGTON, D.
C.
DATE:.
MONDAY, liARCH 16, 1987 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
i I
( sigt )/
ME
'#<ZA/
l (TYPED)'
j KAREN ILSEMANN l
Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation i
)
l O
,