ML20210L030
| ML20210L030 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/10/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#187-2541 OL-5, NUDOCS 8702120334 | |
| Download: ML20210L030 (66) | |
Text
.
ORIGIN UN11ED STATES o
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 50-322-OL-5 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
PREHEARING CONFERENCE O
LOCATION:
BETHESDA, MARYLAND PAGES: 184 - 247 DATE:
TUESDAY, FEBRUARY 10, 1987
/0 0 l ACE-FEDERAL REPORTERS, INC.
O Cfficial Reporters 444 North Capitoi Street Washington, D.C. 20001 8702120334 870210 00 T
D NADONWIDE COVERAGE
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O 1
UNITED STATES OF AMERICAL t);
2 NUCLEAR REGULATORY COMMISSION 3
BEFORE THE.
ATOMIC SAFETY-AND LICENSING BOARD' 4
_ _ _~_ _ _ _ _ _ _ _ _ _ _ _ _ _
_x.
In the Matter of:
6 Do'cket No. 50-322-OL LONG ISLAND LIGHTING-COMPANY 7
(Shoreham Nuclear Power Station, 8
Unit 1) 9
X 10 Nuclear Regulatory Commission 11 Fifth~ Floor Hearing. Room 4350 East-West Highway Bethesda, Maryland 12 es k-)
13 Tuesday, February 10, 1987 14 The prehearing conference in the above-entitled. matter 15 convened at 10:00 a.m.
16 BEFORE:
77 JUDGE JOHN H.
FRYE, III, Chairman 18 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 19 Washington, D. C.
20555 20 JUDGE OSCAR H. PARIS, Member Atomic Safety and Licensing Board 21 U.S. Nuclear Regulatory Commission Washington, D. C.
20555.
22 JUDGE FREDERICK J.
SHON, Member 23 Atomic Safety and Licensing Board U.S.' Nuclear Regulatory. Commission 1
Wahsington, D.
C.
20555 24 O-25 ACE-FEDERAL REPORTERS, INC.
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1 APPEARANCES:
.V 2
On behalf of the Applicant:
3
- D O N A L D - P.~ IRWIN, ESQ.
KATHY E.
B.
McCLESKEY, ESQ...
4
.Hunton & Williams 707 East Main Street 5
P.
O.
Box 1535 Richmond, Virginia-2'3212 6
7 On behalf ofLSuffolk County:
8 LAWRENCE COE LANPHER,' ESQ.
KARLA J. LETSCHE, ESQ.
9 MICHAEL S. MILLER, ESQ.
Kirkpatrick & Lockhart 10 South Lobby, Ninth Floor 1800 M Street, N.W.
11 Washington, D.
C.
20036-5891-12 On behalf of Federal Emergency Management Agency:
WILLIAM R.
CUMMING, ESQ.
14 Federal Emergency Management Agency 15 500 C Street, S.W.
Washington, D.
C.
20472 16 On behalf of the State of New York:
17
^
^"
O*
18 Deputy Special Counsel to the Governor 19 Executive Chamber Capitol, Room 229 20 Albany, New York 12224 21 On behalf of the Nuclear Regulatory 22 Commission Staff:
23 EDWIN.J. REIS, ESQ.
ORESTE PIRFO, ESQ.
U.S.
Nuclear Regulatory 24 Commission O
Weshineten.
D.
C.
20555 25
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P_ R O_ C E ED I N G S, 2
JUDGE FRYE:
Good morning.
We have a suggested 3
agenda from Kirkpatrick & Lockhart, which does not yet have a 4
cover letter.
We just got the agenda.
5 MR. LANPHER:
The cover.1etter was 6
inconsequential --
7 JUDGE FRYE:
Apparent.ly when they transmitted'it,.
8 they sent us a signature block.
That's how we knew there was 9
a cover letter.
Is that agenda satisfactory with everyone?
10 MR. IRWIN:
I sent the board a letter late 11 yesterday afternoon, Judge Frye, which contained a few 12 comments on that agenda by telecopier.
I don't know if the f-I V
13 board has it.
I have extra copies if for any reason -
14 JUDGE FRYE:
I have not seen it.
15 MR. IRWIN:
By and large, we don't have any major 16 problems with the agenda.
17 JUDGE FRYE:
Other than the State of New-York --
18 well, I take it the State of New York's witnesses are all 19 designated now?
20 MR. ZAHNLEUTER:
That's correct, all four.
21 JUDGE FRYE:
Are there any other witnesses that 22 have not yet been designated?
23 MR. IRWIN:
No, sir.
I can report to the board 24 and all parties that LILCO has no further witnesses to
()
25 designate.
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JUDGE FRYE Intervenors, have any?. 'Theyj-are al'l:
2;
- designated.
A13 right.
~
3.
~ Depositions, :thenj with' the exception,LI' suppose,.
4!
of the" two New. York ' State" ditnesses J --- i three. New -York' State" 5,
wi tnesses ?.
6 MR. ZAHNLEUTER:,It's;:a panel of three.
7 Ji1DGE-FRYE:
I though't the depositio'n ofLoneShad~
8 been completed, and'-the.designati~on.of?the-other;two; required 9
a follow-up.
10 MR. ZAHNLEUTER:
On Tuesday, February 3, 11 Mr. Papile, Mr. Czech and Mr. Baranski were-deposed'for-a 12 full day as a panel.
Now LILCo.:has requested a:further.
13 deposition regarding their designation as witnesses, and.we 14 are negotiating a place and a time,7 and we will probably ?
15 reach an agreement.
16 JUDGE FRYE: ~ Hight.
That'was my. point.t With thatn 17 exception, all of the depositions-are: complete?;
18 MR. IRWIN:
Yes, sir.
19 MS. LETSCHE:
Yes.
20 JUDGE FRYE:
Good.
21 Going down the.Kirkpatricki& Lockhart agenda,.the.
22 LILCO motion to compe3 government responses;to:t.he'second'setL 23 of interrogatories was overlooked.
24 MR. LANPHER:
Can you< speak -- I don't knUw if 25 your mike is on.
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JUDGE Sil0N:
It'sinot-on;_is it?!
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MR. LANPHER: _ Judge,.-ifiyou keep"your voice.up, we!
3 can-hear.you.
o l
4 JUDGE.FRYE: LOkay; 11-will try not':to speak lintor p
h SL the. microphone.
6 We had overlooked;LILCO's-motion to compel' L.
7 government's responses to - the second lsetnof.- interrogatories :
L 8.
filed December 4, and'in'reviewin'g that.! matter,-'it seemed to
~
9
.mc that it may well.now be liargely-moot; 11s-Lthatiso?
10 MR. IRWIN:
No,' sir.
11 JUDGE FRYE:
It's'not?
12 MR. IRWIN:
No, sir, we need thatai nformation.
d l-l-
13 MS. L E T S C II E :.If'I1might-justm respond, I-': think l
l-14 that the information that was requested was the bases;for=
s
~
l 15 various expert witnesses' opinions.
All'.those witnesses have l
16 now been deposed.
Anything that they had;-to say was stated 17 in those deposiLions, and I agree with you, = Judg'e, that: at.
18 this point, requiring us to go-back and transcribe what a f
19 witness has already said during the depositions'would be-l-
20 rather a waste of effort.
l 21 M R.- IRWIN:
Judge Frye, that's not ho'w we see it.
22 It is unfortiunate that two months have elapsed since;the-1 23 fiJing of that motion.
We would have renewed-the motion,had~'
l 24 we known the board had simply overlooked it..But the-passage
!~
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25 of time, as a mooting measure, ' ultimately can work an L
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.1 sinjustice to the. parties th'at want-the1 relief-they initially;
-2' requested.
I' don't' agree with Ms..~Letschenthat:every-
~
3 question was-taken up in<the depositions..
We fdid not" at' t.empt; 4
to replicate-the-interrogatories in-the: depositions.
.We 5
would be..willing to meet _with~Suffolk County to'try-Eto ph'ase-
~
6 answers, for instance, to. avoid -- if we do not havelan 7
entire testimony.. filing deadline that covers all pieces of 8
testimony on February 27,cfor1 instance, we would be willing) 9 to phase answers so that only the ones wh'ch. pertain t$olthe i
10 February 27 filing deadline had to bes. answered first and 11 subsequent ones could-be answered-'later, so-that'we avoid 12 unnecessary-burdens.on them.
13 But I do believe there-are some answers which-we 14 still want information on.
We do believe the initial' answers 15 were of the character we described them'as being, and-we did 16 not attempt to repeat them during the deposition.
2 17 JUDGE FRYE:
The contentions speak'for.
18 themselves.
Leaving that aside, since discovery is still in.
19 progress, the government is not in a position-to respond 20 further.
That was back las t - fall.--
21 MR. IRWIN:
We believe that that objection,. on. the 22 government's part, or the Intervenor's'part,-should~now be-23 moot.
They should be in'a positionLnow to speak.further.
24 JUDGE FRYE:
That was my point.
It would seem to 25 A me that over the course of time, those responses would have ACE-FEDERAL REPORTERS, INC..
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I been made.
That.'s wh'atjI am1asking,Ihave they been;made?
~
-2 MS.fLETSCHE:
Well, in the sense that the 3.
witnesses -- what those:questionsfask was whatiisfthe7 basis.
4-of your-testimony ~to. support;this7 contention;._this.
.5
' contention, the1other contention.
-At the timejthat-those 6
responses were made,: a : lot of our-witnesses. hadri' t had-time-7 to think about-any of that~yet.
So=we'weren't in a': position 8
to say'what the bases was beyond-what.was atated'in-the-
~
9 contentions.
All of those witnesses!hhve:now~been deposed..
10 And the primary subject'ofIthose depositions ~was, after 11 qualifications and' background, what is your testimony going:
t 12 to be and what is the basis'for it?
You--know,.those 13 witnesses were all fully' interrogated and gave the.b'ases for-14 their opinions to the best of.their ability.
15 And at this point, you know, responding to those 16 interrogatories really would.be -- I.mean,Jif'I were drafting-17 a response, I would refer to the deposition transcript of 18 Dr. Cole and Dr. So-and-so and those would be the bases for-19 their opinions.
20 MR. IRWIN:
The difficulty I have with.that-21 answer, Judge Frye, is to a great extent'the answers the-22 witnesses provided on deposition was -that they did not yet 23 have a basis for a full answer beyond the contention, they.
24
~ were just beginning to work.
They had a lot to say-and.they 25 would be getting smarter over the coming weeks, but they:
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1 didn't give us any'information on deposition-either.
2 If.-the' board desires,LI will be prepared,cIEwill 3'
_be.happyDto submit, not. happy,- butLIEcould submitLa paper-
.4 which shows dozens.of. answers ofJexactly=that nature.:
5-To~be coldly candid-abouteit,.we.have;not:gotten
~
6 very illuminating discovery responses.
I"am-not suggesting 7
anybody has been. hiding any: balls, maybeithey; haven't found 8
the balls.yet..But we haven't:hadtmuch'to illuminate-the' 1'
9 contentions yet.
That is why? this discovery is s till ' live.
s 10 JUDGE FRYE:
This would'also apply to.the i
11 governments have not yet made a final determination lregarding 12 this matter and.the governments are not.able.at this. time 13 able to provide a numerical response.
14 MR. IRWIN:
I would hope thatz.those' areas.would 15 have been better defined by-n'ow, yes, sir.
16 MS. LETSCHE:
If I just-might reply briefly,-Judge:
J.
17 Frye, the fact that witnesses are in'the process'of continued i
18 anaJysis has been the case with respect.to'all witnesses.
I 19 deposed a LILCO witness yesterday who had,not done anything, 20 basically, except read the contentions, hadri't ' looked at the-21 plan yet, hadn't done anything..That is justci fact'of~1ife 22-here.
The witnesres have not started writing.their.
I 23 testimony, ours or LILCO's.
LILCO's Witness-Hockert hail not
.e 24 prepared any work.
One of the w3tnesses we~ deposed bad literallynotreadtheti$econtentions.yet, one ot LILCO.'s 25 c
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-witnesses. :Th'at 's'. the wayj i t lis.
We havefall bcon stuckj 3 r 2
with. that.: Youtake;whatiyou$an;get)fyouftakeLthecwitnesses
.ith theirJinformation:atithe time you depose th'em.
3 w
.4 Frankly, requiringLlawyers,to go back andfand:
5
' basically provide nonstop ~ answers.and calling (their1 witnesses.:
6 every : day' and saying:doJyou :have-any new opinions today,3 7
given'this late ataget.of;the litigation,dwhen:welare) alls E-8 getting ready to.. prepare' testimony,Jdoesn'tiseem to.?me(to':be 9
a very productive use'of time.
10 MR. IRWIN: -Let me respondito-that..The:two:
11 witnesses'Ms. Letsche' mentioned are special. cases.:.OneV$f!
12 them is a witness on emergency; news centers,-Jwh'o7was: late-O 13 designated, quite-frankly,-there'has:been. difficulty in s 14 locating witnesses on the emergency news center.becauseTit is::
15 difficult to locate. people in:the newsibusiness who have-16 familiarity.
17 There was a new-witness-on the emergency news 18 center, Blaine Robinson, who is familiar-in: intimate detail 19 with what was going on.
She was deposed for a.fu.lliday.
-So.
20 Suffolk County got immaculately detailed?informationiIfhope.
~J 21 We aren't getting any complaints about that.
Mr. : Pa tiers on,..
22 yes, is a recently designated-witness, but1he'~i's an 23 exception.
Mr. Hockert is testifying-on a1very limitedi 24 segment of a report he prepared.
That is,"if.he wasiasked 25 questions on that report, I am sure-he gave very detailed j
u 4
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1-answers..Those, witnesses are exceptions.
i L2-We have had iliterally /manweeks,. if: not.manmonths, ofdepositions,ofLILCOjemployeesand!LILCO.consultantshho'
-3
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have.:been 'i nterrogated minute by; minute. of;their.<preparationi~
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[Those pe!Iple have-gotten.
5-for that exercise an'd its ' conduct.
a
.. ~,
s-6 very quantitative answers.
We-have' turned oVeridozenslof 7
baskets of documents.'
([ha'veexplored'thosedocuments.
m 8
That is the tenor.of the testimony thatfLILCO'has'given.
The?
/
m, 9
tenor of the testimony wd have gottenifrom'Suffolk? County's
~
y, 10 witnesses has beensa radically different character. - It:-is '
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_.a..
11 just not accurate'for Ms. Letsche to compare the testimony lof; 12 Mr..Hockert, whose' a very limited witness, f or Mr. Patterson, 13 who is a very limited witness, Jab'out theLoverall character ofL 4
.m 14 their testimony.
I am not suggesting any'duislicity or --- all' 15 I am suggesting there have been radically different-kinds-of-16 discovery.
If LILCO is going to:be abic;tofprepare 17 testimony, which'is fully focused onithe' content' ions,.we need.
1 18 better information from.the.Intervenors.thah we have gotten..
19 JUDGE FRYE:
Let's hear f rofi;',Ms; Letsche andi thon' 20 Jet's move on.
M' 21 MS. LETSCHE: ' 'Wel1, bas'i : ally, ' Judge,Frye, -it 's -
a
~
s.
22 certainly true that LILCO's witne'sses -are 'able-to ~ talk 0 about.
L 23 what happened dur,ing the -exercise, of course they are.
The 24 governments' witnesses can ' t.,
we, weren ' t ' there.
The question 25 where you have some comparison, though, is~when;you are ACE-FEDEMU REPORTERS /INC.
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1 trying~to. find out what! witness' testimony?is-going.tioLbcion-2 the contentions.
The'tw6 partiesfare equally situat'ed when
~3 it.comesuto that.
~
4 The expert. witnesses'provided by LILCO', ILwasfnot
.S referring: simply to Mr..Hockert'or Mr. Pa tterson,. I am-
~
6 talking about Mr..Behr,'Mr'. McCaffery,.Mr; Wei smantl e, - allL of f 7
those witnesses said, what'al'1 offour witnesses'said,;which?
8 is I am in the process of:sthinking about: it,-- I haven't-9 finished my' analysis.
I am -going j to loo _kJ a't _ some more.
10 documents.
I haven't started writing-any testimony-
-_I ; w i l l.
11 give you_my opinion as it. stands - today, and everybody gave--
12 that.
(q) 13 With respect to some: witnesses, such as;Mr.'.Behr;.
~
14 he was very honest and said I' haven't even read the 15 contentions yet, I can't tell you what my opinions are. -We:
16 didn't file anything.
That's, life.
,I piean, he we couldn't 17 he]p it.
The man was being honest,.that.was his answer.
18 Our witnesses, at leas t, have' read the contentions 19 and gave their opinions to the best' of their ability. ' Tha t 's.
d 20 basically all I would say.
21 JUDGE FRYE:
Moving on,_we have ruled,on LILCO's 22 motion to compel responses with regard to'the: admissions.
JI '
23 think that's taken care of.-
We had also ruled on'the.-
24 Intervenors' January 20 motion for an order c'ompelling LILCO
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i 25 to answer questions with regard -- or fromlits.second set of ACE-FEDERAL-REPORTERS, INC..
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interrogatories.
We did tha t on the same day that you filed 4
t t
2.
a motion for 31 eave to reply and-a reply.
I am incline'd to 3
i
.t 3s reconsi[lerthatruling.'I'Doyouwant to respond to their
~
s reply?
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5
' ' "M R. IRWIN: iYes, sir, but not right'here, not
.6 without not' ice.
7
. JUDGE.FRYE:
Okay.
The point, it seems to me, if 8
they. re asking for the facts upon which the experts will 9
base their testimony, that is not attorney work product.
t 10 MR. IRWIN:
But if that's the sole question which 11 is troub' ling the board, as to whether the scope of the 12 ques tions which }ntervenors are asking, is limited to the
,-!g!
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13 facts on which experts are going to base their testimony -
14 JUDGE FRYE:
Th'h t 's the way I read the response.
15 MR. IRWIN:
I am perfectly happy to engage in that 16 question.
I submit tha t that is a question which is implicit 17 in 1,ILCO's outstanding discovery requests to Intervenors.
18 1,e t 's put these comparison motions against the 19 backup of a testimony and filings here.
We.will not argue 20 that right now, but just bear in mind there are trade-offs 21 here.
We wil3 get to the testimony and filing in this case 22 in a little bit.
I just want to make sure that we are
~23 prepared to weigh dates of filing of testimony against the 24 completeness to be expected of it.
I can amplify -- I mean,
(
)
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testimony,ithey should beTprepared'to:make fuller 1 disclosure n
2
-beforehand of the bases on which they would rely.
1 would 3-
. prefer to discuss the1 outstanding; discovery requests.and-the.-
4' sequence of testimony;,if there -is - to bel a ' sequence., at ' all cine:
5
' time, if that makes sense.
6 JUDGE FRYE: -. A n d z the: completeness'of(thef 7
. testimony?
8
' MR. IRWIN: ;Yes,-sir.
9
' JUDGE FRYE:
~All righti..Is there some indication 10 that the testimony -would be less than full? -,
11-MR. IRWIN:
No,-sir.
~I.am sorry, complete =- 2I do 12 not think is an issue.
'I think detailfandi prior noticelof:
O 13 factual arguments is a potential consideration.to:be taken up 14 in considering the t.estimony filing schedule or-Lin possibly_
15 ways of dealing with lack-of notice.
When we get to that,_
16 which I believe is item C, we can discuss -- all -I am 17 suggesting is if we'have a lot of-last minute discovery.
i
-10 problems, and I was not aware that the board-was. inclined to 19 reconsider an order which we frankly had-disposed of-an 20 issue, it's useful to put that whole process together.
21
- JUDGE FRYE:
Let's do that.
Let'sLmove to-the 22 schedule for filing testimony'then.
23 MR. IRWIN: 'Since it's our motion, Judge.--
9' 24 JUDGE FRYE:
1.am corry?-
1 {}
25 MR. IRWIN:
I was going to suggest that we-atart ACE-FEDERAL REPORTERS, INC.
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.1 since_it~was_our motion.
2
' JUDGE FRYE:
All-right.. -I think(that's fine.
'3 MR.-IRWIN:
There are a number of clusLers;o'E4
~
~
,4.
contentions, and Ms. McCleskey.for LILCO and.Ms.1Letsche for?
5
' Suffolk County,: have been _ discussing how ;they shoul'd ble' 6
grouped.
I thinkit's v'ery111kely that-_we are goingito1.be-7 able-to agree on.a number-offgroupings-that-hassvariously.
~
8 been-proposed as being'two out of;three,;five:or eight'.
9 Exactly how many there will be, I am not exactly}sure at:the7-
-i 10 moment.
I feel reasonably confident in believing 1thatiwe' 11 will be able to reach-agreement)on the number of groupings.of.'
12 testimony.
O 13 Where we are going _to=have disagreements is.on how:
14 many of them should be filed at_any given: time.
It.is
~
15 LILCO's belief that they.should all-be filed atconce on 16 February 27, Suf folk County 'does not agree-with that.
I take 17 it that New York State agrees with Suffolk County.
10 PEMA, which is-the'only federal entity 1 sponsoring 19 testimony, apparently intends to file all of its testimony on.
20 the 27th, regardless of-what other parties do.
21 1/ILCO 's - basis.for. believing testimony-ought to be i
22 filed at one time is really pretty simple.
The exercise is a 23 one-day event, lots of parts of'it re. late to each other.
A 24 unitary filing of testimony in time, even if_the' testimony is 25 broken into groups, tends to promote the coherence of.'the-t
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. testimony.
2:
.We believe that::that[is an:important,purposb.$to be^
3 servedlin a proceeding..
4 Secondly,ithe':boardireceivessall the _ testimony at.-
-- 5 one time, regardless 'of whether it.s tudies it-al1[in l detail t
r 6
at that on.e time, we will1have-a.better sense of the overall 7
purpose of the parties') cases, than-it'willLbelable to getLif'
~
8 it gets things in dribs ~and drabs overi. time.
c 9
Third, this _ proceeding,- although itfis! now a year
~ r 10 since the exercise, is supposed to;b'e.an; expedited 11 proceeding.
This ; board knows, as wellras the11awyers, c that -
12 the lawyers are able to produce massive amounts:o.f words.and-pl k.-
13 that the amount of.words they' produce bears some. relationship-14 to time.
I believe there has-been a lot of time.available.up' 15 till now, and the parties ought'to be well' capable:of putting; 16 their cases on the-paper.
17 My experience in 15 years.of practicing law is 18 that given more time, words somehow tend to find-their' ways 19 through the keyhole-like the camels nose under,aitent,_and 20 you will see more testimony on.more. issues than.you.can;-
21 imagine exis ted at the time of the. initial-filing'.
22 1 am worried about that, as counse] for a client 23 that has a time as well as~a substance' interest in-a case 24 where delay costs $1 million.plus~a day.
O 25 I think that we have had an ample discovery l
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1 period, we had at least eight or nine lawyers who have.
2 entered appearances in this case on either side.
I believe 3
we can get our tes timony filed and that would promote the 4
unity, coherence and ultimate validity of the case if we did -
5 it at one time.
Suffolk County doesn't agree with us on 6
that,. but that i s LILCO's posit. ion, and if Suffolk County has 7
alternate proposals, I would.like leave to respond,to them 8
after we hear them.
9 MS. LETSCHE:
Well, our position was pretty well 10 laid out in our response to LILCO's motion, which was, you 11 know, we discussed this once before,.the board suggested and 12 seemed to believe,~ consistent with what the governments had
,3 N_)
13 suggested, and at that time what LILCO had suggested, that 14 rolling in the file makes sense.
Wo stated at that point, 15 and when LILCO first suggested that decision he changed in 16 January, that we on behalf of the governments,'couldn't do 17 i t, since we could not. file physically all our testimony-on 18 February 27.
I think the most important consideration here 19 is just what makes sense.
20 We have agreed with LILCO to groupings of 21 testimony.
We have agreed to five groupings, logical-22 groupings subject-matterwise.
23 JilDGE FRYE:
The same grouping set forth in the 24 letter?
25 MS. LETSCHE:
With some minor -- a few subparts
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- moved around,1yes. L Generally: those. five ' groupings.
We have-
- 2 agreed to an order of1 filing, a.;llogica1Lorder'that~makes!
7
'3_
sense, both substantively and?in terms;ofiour. individual I
4
. logistical requirements..
-5' The first group, which!wePhave. agreed.seems toi r
make sense to file firs t, is:a large: group'of testimony,J15,.
6-7 16 and 21.
It.is. going to take.a few-weeks of" hearing time-8 to go through'the testimony, at least,that?LILCO'and the 9
governments-intend to file onithose contentions. - I d o n.'.t -
j 10 know wha t FEMA's ctes timony, is going to be, f
11 Now, in111ght. of that, to say --
1 12 JUDGE FRYE
~Let me interrupt youlfor a'.second.
O 13 Will PEMA have testimony on that first_ grouping?-
14 MR. CUMMING:
Yes, for - 15 'and 16, that's corre'ct.
15 Our witnesses.were fully. deposed on that subject'in the.
16 depositions in accordance with the board',s. orders.
17 JUDGE FRYE:
Wil1 Staff-have any witnesses on I
18 this?
i s'
19 MR. REIS:
We will not-have separate witnesses.
{
20 MS. LETSCHE:
Anyway, the' bottom line is,-with~
21 respect to each of the subject matter groupings'that we have i
22 agreed to, they represent a substantial volume 00 paper-in 23 terms of prefiled testimony, and some time in terms of.-
l 24 cross-examining.
1 25 Now, we had understood the board to have.said in ACE-FEDERAL REPORTERS, INC.
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Q)
I the earlier conference that the idea was to have testimony 2
available a week or so ahead to cover a week's worth of-3 hearings.
I think that makes sense.,
What we would be 4
suggesting here is, in fact, a lot more than that.
Because 5
the testimony you would file, for instance, on this first 6
group, 15, 16 and 21, would clearly cover substantially more 7
than a week of hearing time.
8 And to suggest that there is any logical or other--
9 reason to file, you know, another stack of paper, to have it 10 sit, when we are in hearings on other issues, and no one is 11 going to be able to read it or prepare for it, just doesn't 12 seem to be any reason for that.
m 13 Now, Mr. Irwin talked about this being a one-day 14 exercise.
I don't frankly see the relevance of that.
There 15 are a lot of issues raised and they are different.
They are 16 going to be discussed diff erently by dif ferent people in the 17 testimony that's filed.
You can't be dealing with one of 18 those issues more than one at a time whether i t's on paper or 19 in a hearing.
20 To force the parties what, frank]y,'we could not 21 do, filing it all at once to have all that paper sit there, 22 just doesn't seem to make any cense at all.
Particular.ly at 23 this late date, when we, at least, and I don't know about the 24 other parties, had been asuuming that the board's earlier
^
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1-case, and we_have adjusted our plans;accordingly.
2 JUDGE FRYER. Do you think'it will take_several 3
weeks to try the first' topic?
4 MS. LETSCHE:
It will take a couple of weeks, 5'
absolutely.
Given what we understand.LILCO's testimony to' 6
be, or will be on those issues, and what we know we have.
7 The numbers of witnesses that have been identified 8
on those contentions, I can tell you that the governments 9
have at least seven, and I don' t want you to hold me to that, 10 no, in fact, more than that, seven, eight, nine, 10 witnesses 11 on contentions 15, 16 and 21.
I might have left out a 12 couple.
n t
2 13 JUDGE F8YE:
They won't all be separate; will 14 they?
15 MS. LETSCHE:
No.
There will be panel _ testimony, 16 although there may be more than one panel, since you have 17 these three contentions.
But there are a lot of witnesses.
18 LILCO has a large number of witnesses also, and there are a 19 lot of issues involved in that.
20 Given what we unders tand LILCO is going to be 21 talking about in connection with those contentions, that is, 22 what happened in other exercises and Ll51ngs like tha t, you 23 are talking a lot of testimony.
I don't think there is any 24 way that those issues are going to take less than at least a
)
25 couple, and I would say more, than two weeks' worth of ACE-FEDERAL REPORTERS, INC.
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' 1; hearing time. : I : think1 definitely ; more ' than.. two 1 weeksl of-
-2f hearing time,-not:countingFwhatever FEMA has because I--: don?t "
3:
know what that will'be.
4.
MR.-CU'MMING:
Judge ~Frye,'may ILmake.~one 5
representation that'I_think is important--for.the' board;to; 6
consider. 'Given.that the Staff is:not"; producing itsiown f
7 witnesses,.and.thatEthe FEMA.witnessesLarc,..in fact',igoing'to 8
testify.with respect'to all~ contentions, welhave represented:
in writing before the board,,before the. issue.oficonservation 9
y 10 of resources.
l 11 But I..think it is very important for thelboard to; l
12 unders'ta nd, that although FEMA sees lthat its' role.is'
! o-
~
13 primarily one of explaining and testifying with-respect to:
14 the postexercise assessment, It:is clear; based.on myi
~
15 personal review of past' testimony, before other: boards, that 16 the boards have, on occasion, had issues, that~because the l
I 17 PEMA people were expert, and did.have expert? opinions, th'at:
18 they were, in fact, the only independent' group that they i
?
l 19 could go to with respect'to questioning.
l 20 In other words, they did not have whatever-I l-21 inherent bias there was because they represented their i
l 22 witnesses for the Applicant or for the-Intervenors.-
l
(.
23 So we would at least like to assure the board that' 7
24 we think you are fully conversant with our concern on
[
25 resources and we would like to. file our testimony in a..
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'4-there 'is..a wish Lor a ' desire forithe board to: questionitheir.4on 1
- SE a-~ subject?or-to allow for them toigive'further expertlopinion.
s 6
testimony'on a subject,rwe'would(t'ry.to.'make th'ose:Jpeopie'
+
7 available, wha tever the : schedule is?.~ tha t ! t!h'ei b'oard ' works e
8 out.
9 What we are really talking about is trying,.,to get.,
10 that block tes timony out.of c the way so weL aren't-constantly.
11 in and-out of the; proceeding.
However, we will try to make:avallable and4 12 13 represent to you that we will"make available-those: people bif J 14 it's the board's desire.to hear.their_ expert opinion'on an; 15 issue, which may not have been focused'in the earlier FEMA 1 16 testimony.
17 JUDGE'FRYE:
I would assume FEMAEwould go Jast..
1 18 Was that your point, Mr. Reis?
19 MH. REIS:
Yes.
FEMA would do'last'after these 20 Cive listings, or'however they are,.and FEMA's testimony 21 would cover a)) of the preceding groupings at that time.
-S 22 MR. CUMMING:
That's fine.
That's our-1 23 preference, 24 MS. 1.ETSCH R : - I was going to have~a comment on 25 Mr. Cumming's final suggestion, but it'can wait, i
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1, JUDGE FRY'E:
Let me ask,(Mrs[Irwin,-wh'at'lisJyour m
=2;
--assessment ion?the. amount = ofitime for thisitopic?.~
3
' M R.-. I H W I N :
My assessment, ' Judge Frye,ils Lthab J
'4' hearing can go on ' for : five years f i ff the board permits : it.:
5 This-is the issueJthat Ms.:Letsche's,. remarks brought 1to-6' mind.
Sure,.it could go.a couple of months'on(these-two 7
issues, : it cou ld go. a week',, might : go two days '. (Largely.
8
" depends.on what the' board sees as being important.
The-board 9
can get'.a handle on.that;only if'it knows what.all the:
10 testimony is.
11 If we file'-- if we.have five groups.of: testimony, 12 and we put in a substantial chunk;of1 testimony, the p
V 13 Intervenors can probably put In' a couple?of 100 of.pages; so
~
14 could we without batting an. eyelash.
- We would have two, four
15 weeks of hearings.
Then at.the end-of.that,-nobody can 16 predict exactly whether that testimony,.that' set of 17 cross-examination is going to-end.
18 So, maybe we guess-right. :We get the.second; group-19 filed and another group comes in and we have another couple-20 of months of-hearings on that.
The third group-comes'in.
21 This proceeding bids fair, I promise you,.to go the: entire 22 year.
It has happened before, it can happen again.
The 23 board has got to bear that in~mindlin terms-of-its overall 24 management of this~ case.
O 25.
JUDGE FRYE:
So what you are suggestingLis.that!
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all the testimony should come in at once, and then there will 2
be motions to strike.
3 MR. IRWIN:
Not necessarily motions to strike all 4
at the same time.
I think you can sequence the motions ~to 5
strike.
I also think that if the Intervenors have relied, 6
however ill-advisedly, on what they understood to be the 7
board's order last time, we frankly didn't understand it that 8
way.
That's why I filed a letter two days after the 9
prehearing conference, which has been on file a month now, 10 saying we didn't understand the board to h.sve irretrievably 11 committed us to a rolling schedule.
12 I prefer a rolling schedule in the context of O
i 13 summary dispositions, which the board did not favor.
But if 14 the Intervenors relied on that schedule, I can understand how 15 they might have suffered some hardships although I think nine 16 lawyers can overcome hardships.
If we have any rolling 17 testimony - let's have the first couple of clumps due on the 18 22, second set of clumps a week later, final clump a week 19 after that.
To get over the logistical hardship or let the 20 board get an overall scope of the likelihood of the 21 proceeding up front.
I think that's vital]y important.
22 Judge Shon has been here for three years now, he 23 knows.
Ms. Letsche has been here for five, Mr. Lanpher has 24 been here for five.
I am worried about that:
That's the g
25 poi nt I am trying io make.
IL's hard to prediet how long i t.
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will take but it could take a couple of weeks and-six if the 2
board doesn't make us, exercise some discipline.
3 JUDGE FRYE:
Ms. Letsche, what is your estimate of l
=4 time for the remaining topics?
S MS. LETSCHE:
Well, frankly, we spoke yesterday, 6
in speaking with Ms. McCleskey, we agreed that.each of these
~
7 topics is roughly equal in size and length.
I think in terms 8
of rough estimates, that's probably right.
None of us are in j
i 9
a position to say for sure.
But that they are roughly about l
1 10 the same.
1 11 I have a couple of things to say in response to l 'g 12 Mr. Irwin.
First of all, just to put this at rest, it's just l
Gl l
l 13 absolutely not true that the discussion of rolling schedules l
{
14 the last time was in the context of summary disposition l
15 motions, because that whole discussion was based on the I
16 supposed decision which Mr. Irwin couldn't agree to for sure l
17 because he hadn't contacted his client, that LILCO would not l
18 have summary disposition motions.
That was the premise of I
19 the whole discussion, so I want to put that at rest.
The 20 board's ruling, I think, was a ruling that anyone was 21 entitled to rely upon, and we did.
22 nut putting that to the side, I think that the 23 discussion of getting control of this proceeding and getting 24 a handle on the whole proceeding is a legitimate one, but O
25 it's premature to suggest that at this point you should try V
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-I to figure:out'what isLgoing-[tolbe' happening'or-whatishouldlbe-
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happenin'g three orifour'wceks'from now.
3 What.I_would'suggesttis7you_get the.-firstibatsh of
~
-4 testimony in, youllook atliti
.Youilook another it,; people
/
5-will give you estimates.offhow much'cros's-examination ~ time 6'
they expect.
If it turns ' out _ that it 's going gto be anweek,;_
7 or you look at it and :you say':I don't think';I. ami going Lto.
8 allow this for more than.a week, we might' argue with.you 9
about tha t.
If that's what.youfdecide,Lfine,'you'say:okay, 10 guys, next batch of testimony comes in'in'a-week.-
t 11 But-to' sit here today, andLtry to'.foreseeithe
[
12 future, when we are not in a position,._ frankly,.to.give you a.
O 13 lot of detail, yet, as to the exact size of each onciof these-14 clumps, it seems to me just doesn't make sense.
It's'a more 15 rational approach to see what you have, and to make aJruling 16 wl'en you have some basis for.it.
17 So what I would sug'gesthis that we file this'first la batch of t.estimony, people look at l't,_give you an est.imate; 19 of our cross-examination time, and then you say,_okay,.it's 20 for sure going to go for a week.
I don't think anyone is F
21 going to dispute that.
I don't think anyone, frankly, based 22 on other discussions that. we have would dispute that first 23 batch, which is a complicated set of issues, is going to'go 24 in Jess than two weeks' time.
I think you_look at that and 25 then tell us when you want the next set filed.
You know,
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1-maybe it-is only a week,/in_which case-.we f11e it-in a week.-
2 But:I just think!:1t makes: sense _ to getia ~ feel: forg 3.
what.is'out there before you try to make sort lof' predictive-'
4 rulings on those-1:inds ' of ' procedural thing's.
5-I.have one other thing'to say in responsesto 6
Mr. Cumming's suggestion.
As we said in our: motion, if. FEMA
~
7 wants to file all of..their testimony at once, tha t's fine.
3 They:have logistical reasons to.do-that, since 9
they have three witnesses.who apparently are, going toftalk 10 about all of this stuff.
11 I think It's very important,- wi th respect to these
~
12 first three issues, 15, 16 and'21, which.are, I.think,-
13 everyone would agree a little bit, in.some respects, 14 different in kind from the others, because they. involve this 15 full participation question, which is novel and?th'e board is 16 going to be getting some novel-testimony on it,;I believe.
I 17 think it's important for the board.to _have that whole 18 testimony in one set and to get FEMA's position on that' 19 issue, along with all the other parties ' position.
20 I think that you should not make a ruling, right 21 off the top, without considering opinions of the parties lon' 22 it, that with respect to all issues, you don't need any PEMA i
23 input, until the very end.
1 24 Because I think in order to get that' Issue in 25 context, and possib.ly some of the others also,.but I am just l
i f
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' addressing that first one right now.
12 It'willibe'important to have the-position of,that.'
3'
" expert" agency on full participationnexercises and what-it-4
.means to test different pieces-of a plan.
~
5 So on, that: subject, If.think' there needs to/be more
'6 discussion as to when physically FEMA.would appear for 7
cross-examination.
8 JUDGE FRYE:.Why is~it important?'
9 MS. LETSCHF:
To have them --
10 JUDGE FRYE:
That particular topic?
11 MS. LETSCHE:
I am talking'about that one, because 12 it comes up first,.and it's -the one I 'am focusing -on.
I:do 13 think that it is a different kind of issue.
When you look at 14 the other issues out there, they all involve a:little more --
15 let me see, how should I-put this.
More about the assessment 16 report and the substance of. FEMA's findings.and conclusions-17 in that report.
Those first three issues really go to --LI 18 think we all shorthanded the scope of-the exercise'and what 19 the report did not include.
What demonstrations were not 20 included.
So they were different in kind, I think.- As you 21 know, there are questions there that haven't been addressed 22 elsewhere.
You know, we are all working on our. testimony to 23 help you address them, and I would think that for 24 completeness' sake, it would be good to have.those issues 25 fully before you with all the positions of the. parties at one ACE-FEDERAL REPORTERSrINC.
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_ time, rather than getting them piecemeal and getting FEMA's 2
way dowa at the end of the line.
3 JUDGE FRYE:
So as an aside from that, you just 4
recently had an argument on FEMA's appeal.
Do you have any 5
indication, any of you, when you may have a decision?
6 MR. IRWIN:
No, sir.
That. was one quest. ion I was 7
going to address. -One of the -- an additional consideration 8
to be taken up in sequence in testimony, if anything other 9
than a unitary filing is ultimately ordered by the board, is 10 the fact, and I can't estimate the probability, that t.here is 11 a possibility that contentio6s 15 and 16 may find themselves 12 being removed.
I presume they would ultimately be appealed 13 to the Commission.
So their s tatus, obviously until they are 14 removed by some board or the Commission they are in, but 15 there is a possibility they might not be.
16 JUDGE FRYE:
In light of that, wouldn' t i t make 17 sense to make that the last topic?
10 MS. LETSC!lE :
I think the reason it appears as the 19 first topic, Judge Frye, reflects the opinions, by the way 20 independently arrived at, by counsel for-LILCO and counsel 21 for the government, that from a logical and other point of 22 view, it makes sense to put them first.
23 You get -- as I said, they are different from the 24 other contentions, they involve a certain amount of tactual 2S information, but not as much detail as-you would get later, ACE-FEDERAL REPORTERS, INC.
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andjust'from' alogical-pointiofview,.and:.Iigatherpossib1[
- 2-also justJfrom a logistical point of, view-from alliof.us, cit'
.3
.makes sense to put those issues first.. That's why we all;
~
4
' proposed'it.that way and agreed that.they made? sense to?us_.
5
- JUDGE FRYE: LDo.you want them first?
6' MR.:IRWIN:
'We are indifferent, Judge Fryc. LWe do 7
not;; object to.their going Cirst.
I don '.t !a' gree - with ' wha t -
8 Ms. Letsche said.
The litigative uncertainty;of:them would 9
suggest that there is~some' common sense to putting-them last; 10 but we are, prepared to proceed on them un] ens and"until 11 somebody tells us not to.
12 MR. LANPHER:
Judge Frye --
13 MR. REIS:
Can I?
14 JUDGE FRYE:
Yes, Mr. Reis.:
15 MR. RHIS:
I think it is best they :go las t, as 16 Ms. Letsche explained,-they explain to a great extent'what 17 the evidence is and what was aiid what was not tested and what' la was broad enough.
It must deal on other matters-and.
19 contentions broughF. forth in this proceeding, therefore,'it' 20 makes much more sent that they go last.
21 MR. CUMMING:
Agreed.
22 MR. REIS:
FEMA would agree to this.-
~
23 Also, Judge Frye, I would like to point out;that 24 the skillful arguments for Intervenor might have supported my.
o 25 motion to bifurcate these issues, and that was denied: by the ACE-FEDERAL REPORTERS, INC.
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2 MS. LETSCilE:
Judge Frye, if I could just say,.the 3
fact of the matter is those contentions really do not go to 4
the issues that are raised in evidence.
They are different 5
contentions, and I absolutely disagree with Mr. Reis' 6
characterization.
7 JUDGE FRYE:
I think they have a point in saying a
8 that they are different, certainly.
I agree with you, and I 9
don't think the other parties would disagree with'you on that 10 point.
They do go to scope.
11 But if they are taken last, after we have aircady 12 got the context of what was included, you have got some
,f y
(')
13 background against which to view them.
I think if there 14 might be some advantage in having them last from that point 15 of view alone.
16 MS. L E T S cil E :
I think the important thing is that 17 there is basically little, if any, dispute, as to what was 18 and was not included.
Those aliegations in 15 and 16, we 19 have done admissions back and forth.
No one says they tested 20 uomething they didn't uay, that they didn't test.
21 So it isn't -- I am not sure if that was part of 22 your answer.
23 JUDGE FRYE:
My point is if you go through the 24 contentionu dea 1ing what was conlesLed, you have thal and you 25 go back over the background of what occurred during the ACE-FEDERAL REPORTERS, INC.
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1 exercise, which we would not'have if we take this first.
If, I
2 we have that background, we can then look at 15 and 16, some 3
knowledge of what the exercise did produce.
.4 MS. LETSCHR:
It's a flip side, it's a judgment 5
call.
I think we had determined that in terms of the board 6
getting i tself educated and getting into this case, it would 7
make sense to start out with those -- this is what was not 8
included and we have points to make about the fact that they 9
were not included and to proceed from that into the l
l 10 discussion of the substance of what., in fact, did happen, l
11 which is a separate area.
It's your judgment which of those i
12 two you want to hear first, but I think we had concluded, as g
13 had LILCO, that it made sense to start out without that other 14 group.
15 MR. IRWI fJ :
If I might add one thing.
16 JUDGE FRYE:
Yes.
17 MR. IRWIN:
I agree with what you said just a 18 minute ago on the relative position, 15, 16, 19, could go l
19 either front or back, 21, I am sorry.
The one other point, 20 though, that I would make, is that there is nothing I have 21 heard in any discussion this morning that does not suggest 22 tha t the board should not at this point lay out specific 23 dates, whether they be one date or two dates or three dates l
24 for the filing of testimony on all issues.
t]
25 Jt1DGE FRYE You are getting ahead.
My next G
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ques tion is, -- with rega rd to12,.3, ' 4 f and 5,.. are you agreed -
2-that they ought to'go'in.that order, or 3 a 4there some 3
disagreement'with-regard.to that?
u 4
MS. LETSCHE:
With onelchange. i4 and 5;would'be.
5 reversed.
6 JUDGE FRYE:
Okay.-
7.
MS. LETSCHE:
.Our agreement, 'a t leas t,- was -
~8 prem3s'ed-on number 1 staying number:1'.
If that were to 9
change, we would' have to look at 'it again,. because. there were 10 just a lot of logistical considerations -3 n terms = of witnesses 11 and things that went into that.
12 So we had agreed'to 1, 2,
3, 5,.4, was what we had 13 agreed to.
14 MS. MC CLESKEY:
Tha t 's right..
15 JUDGE FRYE Counsel for LILCO agrees that that -
16 was what was agreed to.
If we move.1 to last, you all need 17 to confer; is that what you are 'saying?
18 MS. LETSCllE That's right.
19 MS. MC CLESKEY:
We are happy to go forward,with 2 20 through 5 and then 1.
21 JUDGE FRYE:
2, 3, 5, 47 22 MS. MC CLESKEY:
- Sure, 1.
23 MR. MILLER:
Judge Frye, one thing I would.like to 24 po3nt out, we have focused our resources on number 1, 25 following the t.estimony piecemeal as we discussed and was I
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' agreed on January.6.
Number 2,..from our. standpoint,iwe,have 2~
-assumed all along that 15,'
16, and LILCO_has~ wanted to1 3
include'21, and I guess at this poin t we,have agr_eed.to -tha t, 4
would be ' the starting point. of the' litigation'.
S We would'have some problems'at this-point,-
6 shifting our' focus away from 15, 16; and, if necessaryh 21',.
7 being the front piece _of testimony, and try to.-rearrange 8
things so something else'could-lead.off..It'sJsomething we
~
9 have to think about.
I guess I_am not~saying we could not do-10 it, we certainly 'have not been focusing'our efforts in that 11 direction at all.
12 MS. MC CLESKEY:
Judge Frye, weLhad our first-0 13 discussions about. the order of testimony yesterday at 4:30'.
9 14 If the county has relied.on'15, 16 and 21 going fitst,, they t
15 did so at their own peril.
[
]
16 MR. MILLER:
We were relying :.also on the January 6 l
17 board ruling that said we were-going to file testimony i
18 approximately one week's testimony at a_ time.
15 and 16 han 1
1 19 always been the actual s tarting place.
20 JUDGE FRYE:
I don't think we ever' indicated what 21 we thought ought to be the logical starting place.
22 MR. LANPilER :
Judge Frye,-I think one C1nal 23 comment, then maybe the board needs to confer, that, I just t
l 24 don't t.hink, should be allowed to go unanswered.
1 25 Earlier LILCO counsel talked about how L11-advised 4
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1 Jit was to rely on your order of January _6.
I suggestthat l
l_
,2 the board should go back'and review the transcript.
Rolling
'3-f11 Lng.of.teatimony was. discussed at1some length.
No-l l
4 objection was interposed'by'any party at.that time..It-was l
-5 only; subsequent to that:prehearing conference or conference:
6 of counsel that'an objection was raised by.LILCO..
t-7 Now we are on February 10.
We relied on that j
8 ruling.
If there~is going to.be any alteration of the basic.
i 9
parameters of what the board laid ~out.on'. January.6,_and iL'c l..
10 also going to have to be in the context of: complete l
11 reevaluation of February 27~date for the.first what we called 5
12 slug of testimony.
So I want to make sure that that is O
l 13 clear.
I think it's proposterous to call it "ill-advised"ito l
14 rely on a board order which wasn't objected to at the time it l
j 15 was made.
We relied on that.
We relied in good faith on l
j 16 it.
i l
17 JilDGE FRYE:
Do you.have the transcript here?
(
18 MR. LANPilER:
Yes, we do.
19 MR. MILLER:
At pages 159-through 163 are the 20 appropriate pages.
Among other places, you say, for example, 1
l-21
.let's say au rule of thumb that. the testimony of.ench f3]Ing.
i l
l 22 ought to cover one week of heartug.
We are more than happy 23 for the board to read our transcript.
It does have some l
24 markings where discussions were held.
25 MR. IHWIN:
Let's review additional anpectu of 1
l l
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1 that prehearing conference then.
There was supposed to be an 2
intermediate checkpoint meeting which we'all waived _because-3 we decided not to file summary disposition motions given the 4
time it would take the board to rule on that.
5 Secondly, LILCO, however correctly or not, did not 6
understand the board's ruling the same way that Suffolk 7
County does.
I know when I proposed I had in mind the 8
summary disposition motions filing issue.
Third, everybody 9
has been on notice since at lea,st January 9, that LILCO did 10 not understand the ruling that way, LILCO was requesting the 11 board to modiCy or clarify its ruling.
12 Ms. Letsche responded on January 15 with a letter 13 saying LILCO doesn't have a proper motion before the board.
14 That may be a complete confession and avoidance, but she knew IS darn well what LILCO thought.
LILCO subsequently Ciled a 16 motion.
It's been pending before the board ever since.
17 A,
Suffolk County cannot say there is a ILve 18 controversy about this.
H, au Ms. McCleskey pointed out, no 19 discunuions took place until yesterday afternoon as to what 20 contentions ought to be f))ed or t.ried on first.
Therefore, 21 if only to that extent, they are relying, at their peril, on 22 their a]1ocation of resources.
23 MR. LANPilER:
Judge Prye, I would be happy to pasa 24 this up to you, starting at page 157, you stated "I think i t.
O 25 may be good I:or comparative purposen, if nothing etne," you V
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were talking schedule.
" Setting it on the assumption.that 2
there would be no motion for summary disposition. "
All 1.h e -
3 discussion that proceeded af ter that was on that assumption 4
that you had specified.
We will be happy to provide i t to S
you.
6 JUDGE FRYE:
We have it downstairs.
7 MR. LANPHER:
Thank you.
8 JUDGE FRYE:
I i.h i nk perhaps this is a good point 9
for us to take a break and confer.
10 MR. REIS:
Mr. Chairman, before you do, I think in 11 this connection of filing of tes timony, there is something 12 else that ought to be brought up.
That, although I have n
s
)
13 urged it before the Margulies board, also it affects this 14 board.
That is the extent to which the board will hear 15 Lestimony on the relocation centers.
The Staff feels and 16 FEMA feels strongly that the testimony, al though it would be 17 res adjudicaLa or collaterai entoppel, once it is in, I don't 18 think we could repeat. I t again, have i t repeated or 19 reterenced, there are ways of handling it.
But I think it is 20 i m po r ta n t. to say that. all matters invoiving relocation 21 centers, whether it be in the exercise or otherwise, would 22 best. be handled by one board, because they are so 23 intertwined.
Maybe you have toconferwithJudgeMarguli\\s 24 and that. board to do it, but we again want to urge that the
()
25 ma t. ter s involving the relocation centers be broken out and v
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.left,.either eith the other board or this board or.
2 someplace.
3 But the issues so overlap, that we see there would 4
be problems.
5 JUDGE FRYE:
This is the same issue that Judge 6
Margulies addressed in'his letter, was It not, in which he 7
said he didn't see any overlap.
8 MR. REIS:
Yes, I realize.
9 JUDGE FRYE:
To that extent, it seems to me that 10 perhaps he has a veto.
11 MR. REIS:
That could be.
12 JUDGE FRYE:
How do the other parties feel about (n) t 13 that?
FEMA, I know, agrees with that.
14 MR. CUMMING:
We join with NRC in their 15 suggestion.
16 MR. IRWIN:
We see analytical distinctions between 17 the exercise issues and the relocation plan issues regarding 18 relocation centers and therefore does not agree w.ith what 19 Judge Margulics said before.
We are prepared to proceed with 20 the structure of this hearing as framed by the contentions.
21 MS. LETSCilE Believe it or not, I agree with 22 Mr. Irwin.
23 JUDGE FRYE:
We are making progress.
24 MS. LETScilE If we have more issues like that, we f]
25 can agree on it.
A.;
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JUDGE FRYE: hIti also" seemsE to me,f.M,r'. ; Reis, you '
..?
- 2:
. are correct.:
Oncelthc(testimopyjis.Lin in'this; proceedinge
~
r 3
- assuming;that'the-issue ~goeg firat here,Jthat collateral'-
4'
. estoppel:may'.'applyLor'it may be p'ssible to' officially:-notice:
o s
w.
A that' tes timony in a 'subsequen't._ proceeding. 'gLS6;ILthinkithet
~
5-6
-short ofithati.isiwecare probably'not inciinedfto?tryfton
.~
7 persuade Judge MarquilesLt'o change-:his mind.
~
1 8
The.Other concern,~ofLcourse,.isfthdt iticscenshto _
,1 9
me, without'having' thought aboutLitdinia', great deal ofLcare, t
10.
that if we.were to adopt thAt procedule,. we are. automatically.
l 11 shifting these issues to the.'las tiof? th'e : two1 proceedings:- to -
3 12 go forward, which would be' contrary-to~.the' Commission's:
~
lO 13 direction that this be expo'dited' completely, i
14 MR. CUMMING:
FEMA would only represent?that'the' 4
15 coliseum was, in fact, evaluated,,iuring4the. exercise.
I 16 I think that it; is up to the board to determine 17 whether or not that' sort of judicial'not; ice 'hould be taken s
s 18 as to whether there inen change subsequent to the date of the 19 exercise that would Impact on - the validity of. the tes timony.-
4.
20 JIIDGE FRYE:
Well, okay.
I guess from;our point' i
21 of view, we can only deal. with what happened.on the day cof' i'
22 the exercise, and my initial reaction is that what you are 23 raising probably is more properly raised before the Margulies i
j 24 board, since we.are dea.l.ing with the exercise of.--'our i.
25 charter is limited to the e5idecine.
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L) 1 LMR.'CUMMING:
Gladitoihear you say :thdt.
~
2 MR.. MILLER:
Judge Frye, before you take; a : break,'
3.-
this may be helpful;in terms'of what.I think.the'boari wi11
~
~
-4 discuss _during,the_ break.
r
~
5 I,;am _looking sat' LILCo? s January :20 motion.forithe -
~
.6-matters regarding the prehearing schedule.
LILCo?s'own.
7 --
.words, they are talking about why theiboard should rule about:
'8 whether or not he should impose-the filing of testimony.on:a.
9 rolling basis.or simultaneously, LILCo.words were,.I am 10 reading at page S of LILCO's. motion.
11 "This. Issue must be resolvediscon, while there is" 12 adequate time to file testimony.. February 27 is still nearly b
13 six weeks off, ny February 10, when counsel for Suffolk 14 County suggests the board deal with it,.' that deadline will be 15 less than three weeks off.
If the' board acts now, all 16 parties can be put fairly'on notice.of.Its requirements.-
Al'1' 17 parties are already on notice for correspondence of the 18 issue.
If the board waits until February;10, the opportunity 19 to permit anything other than either a wasteful rolling 20 schedule or a unitary filing after a significant delay, has 21 been lost..
The board should decide the issue now."
I.t.hink-22 by LILCO's own admissions you have to permit the' rolling 23 filing of testimony as January 6.
Or there has to.be'a' 24 uignificant delay in the schedule.
25 MR. IHWIN:
Having wri tten those words, I don't ACE-FEDERAL REPORTERS, INC.
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' agree with Mr. Miller's liiterpretation.
.I will leave it.
'2-
.there.
3 JUDGE FRYE:
'I'will= apologize to't.he' parties,-I 4 --
have been recovering from' virus pneumonia an'd'that's wny you-s haven't been getting a rbling.
This is 1 the - 0 irs t week J:I'have
~
5 4.
6 been back on a. full-time' basis.
7 MS. MC CLESKEY:- Me too.~
4 b\\
.8 JUDGE FRYE:'
Do you want to-comment on that e
9 interpretation, Mr.:Irwin?'
10 MR. IRWIN:
yes, sir.
The' basic" point I;made 11 there is, in-fact, valid.
The more notico people h' ave,--the 12 better they are able'to deal with their circumstances.-- ;I 13 have had great confidence, however, of-the resourcefulness of 14 the nine Kirkpatrick & Lockhart'lawy.ers who have. entered.
their appearNnce in this proceeding.
I suspect theychave 15 16 been working as hard as I have been and_they are well 17 prepared.
~
18-I believe a January 27 filing on everything in 19
~ optimal.
If, in tihe board 's - judgment,-. it makes ' sense. to 20 commit to any kind of a ruling schedule, my-absolute-21 conviction, based on five years'of experience in this: case,
'22 is that the board had better do two things. -One ofLthem;is 23 it had better start that process substantially on February 24
'27; and, secondly, it had better put~in concrete deadlines for every' piece of testimony subsequent and'.make'those-25 ACE-FEDERAL REPORTERS, INC..
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deadlines close to February 27, so that'the lestimony filed.
2.
'will be relatively' comparable.
3
.7UDGE FRYE:
We have;every intention'of-4 establishing a-schedule, whether!it's a rolling schedule or 5'
otherwise.
So why. don't we.take a' break'atcthis' point. !I 6
would like for you all to confer during the. break,:if you 7
would, on the proposition that'we discussed earlier, about.
8 putting the first. topic, the scope of:the ---the scope-9 con'tentions, of f until..,las t, and. how - you would ' proceed ~ or-10 whether there would'be any problem about proceeding with'2, 11 3,
5, 4, 1,
in other words,-while wefare~on a break.
Take 12 about 15 minutes.
O
. '13 (Recess.)
14 JUDGE FRYE:
May we go back on.,the record, 15 please.
16 Any results'of.the consultation?'
17 MS. LETSCHE:
I think the results areithat we 18 still-feel very strongly that number l' should stay number 1, 19 and-an additional reason, when we looked at.the concept _ of 20 moving it to the end surfaced, and that in terms'of' witnesses 21 that the governments are-' going to be using on that' group, and 22 the training group, contention.15,- which would' be 'next to the 23 last, if you move number 11down, we have many of the same 24 witnesses.
They tend to!be, or :several' of; them are 25 professors and people who'have~ complicated schedules.
It's
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going to be logis tically dif ficult to have those two subjects 2
back to back like that.
3 I,n addition, I just want to state once more, 4
although I know I said it before, that I feel, and I-think i
5 LILCO agreed, when we together decided that number'l should 6
go first, that in terms of the board having some. contacts for' 7
this litigation, and sort of getting into it in a way that 8
makes sense, that it would be -- it's more logical and easier 9
to give you some context to have 15, 16 and 21 go first.
10 So.we still feel that for all those reasons it to 11 everyone's benefit and wili be much better in terms of our 12 witness logistics to have 15 and 16 remain at the top.
3 13 If the board moves it to the bottom, we will, 14 obviously, we will live with'it, but it will be much more 15 difficult.
16 J11DGE FRYE:
The fifth' topic that the witnesses 17 have a problem with?
18 MS. LETSCHE:
The problem is that the fifth, 19 training, training issues, 15, 16 and 21 involve many of the 20 same witnesses for us.
And so it was better to have, in 21 terms of their logistics, to have those issues not back to 22 back.
23 JUDGE FRYE:
I thought that the idea was to go 2, 24 3,
5, 4.
(GO 25 MS. LETSCHE:
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moved 1 down.
What we had originally agreed to was 1, 2,
3, 2
5, 4.
3 MS. MC CLESKEY:
We need to stop this 1,
2, 3,
5 ',
4 4 --
5 MS. LETSCHE:
What.we agreed to, Judge Frye, 6
originally, and what is the optimal situation as far as we 7
are concerned, starting out with 15, 16, 21, then going to 8
what is LILCO group number 2, then LILCO group number 1, and 9
then flipping what is 4 and 5, so that training is'last.
10 JUDGE FRYE:
I see.
11 MS. LETSCHE:
If you then move number 1 down to 12 the bottom, you have training followed by 15, 16 and.21.
f--U 13 That is what has the witness problem for us.
So it was 14 better for us, as well as giving the board.for context, I i
15 think, to have 15 and 16 up front and training at the end.
16 JUDGE FRYE:
Training and public information, 17 those topics, do they have to be switched?
18 MS. LETSCHE:
Yes, they need to be switched.
19 MS. MC CLESKEY:
We would prefer to leave them in l
20 order because we have a problem with our witnesses on.the SNC 21 issues, but we agreed, in the spirit of compromise that has 22 permeated all of our discussions about these, that we would 23 switch 50, the training issue, to last, in return for some l
l 24 other things, f')
25 JUDGE FRYE:
I see.
So that should not be v
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q 2-MS..LETSCHE:
Right.
3-MS. MC CLESKEY:
Well,- yI had'better read:to you? -
4 the five groups.one'more time, because Ms.fLetsche and I-
'S
' played witih the numb.ers justia little bit'to'refineithe 6
groupings.
One group'is 15, 16, 21.
one' group is/34,440-A,1
~
7 40-B,-41; cone group:is'.22-A-36, 47cand all,of 491except1part-8 C.
One group.is 30, 39,.40-C and'49-C; and one.groupfisc50.
9
' JUDGE FRYE:
Publi~c'information:is 38,f391and'
~
10 40-C?
11 MS. MC CLESKEY: -Plus'49-C.
12 MS. LETSCHE:
Another thing. I might add,. it, in
/^)
V 13 terms of the overall order and where you put 15 and'16,.;it-14 also made sense, from a logical point of view) again,- to:have 15 training last, because of its obvious-relationship to 16 everything else, which was-the other_ reason why.the origina1-:
17 order that we had agreed-on had been agreed on, and it also:
18 involves just a large amount of materials,Tsome-of which'are 19 only being provided us~today.
20 MS. MC CLESKEY: 'I-suppose 1I should'.~ add,'as to the-21 contention numbers for the' groupings, that'we have'just'used=
~
22 the main contention numbers and we.are a'ssuming that all:.the 23 subsumed pieces with a main number will also be' filed at t!he.
24 same time.
A 25 JUDGE FRYE:
So does the board.
Staff --
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-MR.
REIS:
St'af f.s till prefers { to [have--15 ' and': 16 2'
'go lastt for the very reasons-thatuessent.ially'we are' 3
considering whether the exercise was-broadenough:to;be:a
~
4 valid' test.
Until-we sknow ' what' was.E.tes ted, :it doesn ' t make;
.5 much: sense to-go ahead:withchearing that contention,;andrit?
t 6
would be easier for the boardito: understand it, after-itshas:
l --
7 the background, to consider.whatLwas in the; exercise"rather 8
than focusing what wasn't considered.
What:wasn't
-9 considered, of course, involves 1the world,.; ors.the world minus l
l 10 what is in' contentions /2, 3, 4 and 5.
1 11 JUDGE FRYE:
LILCO'is still-ind'ifferent?
l i
l 12 MR. IRWIN:
Wo-are. amenable to-almo'st_everything-O 13 that will get to hearing.
What I think-the boardi-will-come 14 to understand the issues, probably at least as mu'ch_from 15 having all the direct testimony in. front;of'him.and being:
16 able to review all of that.as itwillhto. listening-to'lineby 17 line cross-examinat' ion on' individual issues.. Thdt'.sLone 18 reason we are relatively indifferent.
I 19 JUDGE FRYE:
We tookctopics 5 and 4 first, 20 followed by topics 2 and 3,.would that mess uplyour agreement 21 if we did that?
22 MS. LETSCHE:
Yes.
~
23 MS. MC CLESKEY:
That's not; acceptable.on all:
24 kinds of levels.
25 JUDGE PARIS:
That's what.we want to do, then.
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1 MR. LANPHER:. That is! n'ot,oner ofl;yourfoptio_ns.:
2.
Why,' don't'you-confer some.more.
s 3
JUDGE FRYE:
We. would like?to7take the first topic l
~
4; concerning scope last.
And'iniorder:to alleviate the problem-15-for your witnesses,-lMs.:Letsche, we1wouldfpropose-to190':
~ 6'-
Jthrough - continuously now, without ' a f break', go': througn 2),
7 3,
5, 4 and then'take a week's. break, then take-topic.c number; s
8 1.
~
t 9
MS. LETSCIIE :
-I don't1 understand what-yo'uLtiieaniby 10
" week's break.'"
11 JUDGE PARIS:.Not have'a hearing.
~
12 JUDGE'FRYE:. We - will - no t. have a hearing f or : al O
13 week.
14 MS. LETSCHE:
.So you~ are talking :about'1--- I l
thought we were talking-about-filing testimony?!
15 i
16 JUDGE FRYE:
Not yet, j
j 17 MS. LETSCHE:
Okay.
So youcare talking'about;just hearing time for 2, 3, then'5,7 then 4'and!then takera.. week 1 18 19 and then do 1.
20 JUDGE FRYE:
Yes.
p 21 MS. LETSCHE:
Then 15 and 16?
22 JUDGE FRYE:
.That's right.,
23 MR. PIRFO:
For the sakeLof the record, can we.
24 just read those groupings in for the-transcript.
25 JUDGE FRYE:
Ful1 ' topics?.-
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1 MR. PIRFO:
Yes.
2 JUDGE FRYE:
Surely.
First topic would be field 3
worker contentions EX 34, 30-A 40-B and 40-B-1; second would
~
4 be rad health monitoring and. contentions EX.22-A, 36, 47 and S
49; the third topic would be public information contentions, 6
EX 38, 39, 40-C and 49-C; fourth topic would be training 7
contentions, which is EX S0.
Then there would be a week's 8
break in the hearing, then we would take up scope sampling 9
contentions, EX 15, 16 and 21.
10 MS. LETSCHE:
In terms of order, Judge Frye, if 11 you decided to put 15 and 16 last, so be'it.
I didn't 12 realize we were talking about the actual hearing time
- r. s l
t
%^.)
13 schedule, and I do have a point to'make about that, if that's 14 what you want to talk about now.
15 I think that we had suggested in Mr. Miller's 16 letter, his agenda, that we need to build into the schedu]c 17 some time back in our office, and not to have continuous' week 18 after week after week after week of hearing.
We had 19 suggested two weeks on and one week off, which has been what 20 is done~in prior versions of this proceeding.
21 The proposal to have these four issues without a 22 break, you are talking many, many weeks, I believe, several 23 weeks of hearing; and it might be tha t. as you get into it, 24 you wi]l understand t. hat, f)
25 But I think to start out saying that you are going v
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to do all of these before you take a week's break is asking 2
for --
3 JUDGE FRYE:
It may be necessary to take a week's 4
' break prior to that.
I wouldn't rule that out.
.I didn't 5~
intend to rule out that possibility.
6' But I know you suggested that we take two weeks of 7
hearing followe'd by a week off.
We don't want to do that.
8 We want to get in as much hearing time continuously as we 9
possibly can.
Recognizing and saying that, that it might be 10 necessary from time to time to take a break.
The other thing I should say is we intend, so that 11 12 everybody is on notice, we intend to run the hearing as
,c t
13 tightly as we can.
We want everybody to be aware of that.
14 MR. PIRFO:
I am sorry, I didn' t hear tha t.
15 JUDGE FRYE:
We intend to run i t as tightly as we 16 can.
As to discovery, we are inclined, after conferring on 17 it, to leave that matter as it now stands, to not divert 18 anybody's attention and ef forts away from preparing testimony 19 to making further discovery answers.
So we are inclined to 20 leave discovery as it stands right now and not order any 21 further discovery.
22 MR. IRWIN:
In other words, Judge Frye, the board 23 will not reconsider the motion which had previously been 24 denied discovery against LILCO and the board is denying (l
25 LILCO's motion --
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. JUDGE FRYE:
Precisely.,LWith' regard.tolfilingi
~
- '2' schedule,?welbelieve'thattalthree-stage filing schedule;is.
-3 the best.way to go, with the first installment due.on.the
~
!4 27th',-that'would cover topics 2'.and 3,4 field-worker
-5' contentions and1 rad heaith ' monitoring. contentions; Lthef second.-
1 one.due on? March 113 governing;publierinformation' contentions 6
7' "and ~ training. contentions; and the ' third,d' e on Marchi27 u
81 covering. scope sampling. contentions.
7 9
I think.we had already set'Laischedule for. motions:
~
10'
.to strike in the-last prehearing, and the < 1ast. conf erence.
11 Is there any need to reevaluate-that?-
12 MR. LANPHER:
You -jus t..-
s 13 Would you justireiterate'that ---
4 14 JUDGE FRYE:
We will get a. Written. order out-this 15 time covering all of this.-
While_you'are?here,fI think its L
16 five days.
I forget whether its five-days; prior'to:the
~
17 testimony being presented or five' days.after(ithis-filed..
18 MS. LETSCHE:
I am looking at LILCO'.s motion.'
In 19 here it says five days before the start'_of the' hearing on-the-20 issue.
21 JUDGE FRYE:
Is'that satisfactory?~
22 MR. IRWIN:
Yes, sir.
Except where itJjtst_-can't i
23 be anticipated,_five working days, to the extent we can 24 anticipate it, I think that is-one thing-you can:make sort of P
25 ad hoc decisions on.
But --
t
..?
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JUDGE FRYE:
If there are going to be extensive 2
motions, we want to get them in advance.
3 MR. IRWIN:
It might be better to find five 4
working days, wherever possible.
I'am concerned with exactly 5
that consideration.
'6 JUDGE FRYE:
I think five working days,.whenever 7
possible, to work in that length of time.
8 MR. IRWIN:
One other consideration on the filing 9
of testimony, and this has never been a problem in the past, 10 I hope parties can try to arrange for delivery in hand at 11 each other's office by the close of the working day 12 thereafter or as soon thereafter on the f13ing date.
t
)
13 JUDGE FRYE:
The board would also like to'have the 14 testimony.
15 MR. IRWIN:
That's particularly important given 16 the short turnaround time on the motion to strike.
17 MR. MILLER:
Judge Frye, before you move on and
~
18 off this schedule, let me take a stab in trying to at least 19 have the board push back the proposed duc date for the 20 training testimony.
You are suggesting that we should file 21 that March 13.
We are being delivered today, according to 22 the LILCO lawyers that talked to you yesterday, three 23 additional crates of documents.
We first requested those 24 documents on January 5.
I do not know what's in those boxes
(})
25 of documer.ts.
I do know it will take a lot of time to get ACE-FEDERAL REPORTERS, INC.
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1 through those-documents,.get-them simulated'and, organized l 2
into the rest-oC our? training: documents,7get?them-loutstoiour'
-3 experts;.and, frankly,jpushing backfthe due'date'.of"the-
~
'4 training testimony, from the;27th, which was.the worst' case; 5
and look at the 13th', two: weeks,-does'not~giOe.us that much?
6' extra' time.
7; JUDGE FRYE:.When you get your 'docum'ents,, and youl 8
have a chance to look at them, assess your; situation..at':that 9
point and let us know.
10 Al'l - right.
I think we have.a number >of.
11 housekeeping matters we wante'd to'take upe With regard-to.
[
~
12 the hearing, the date for the'hea' ring.to:cos.mence,.we wanted-0 13
-to commence on Tuesday, March 10.
I think'as a general 14 proposition, commence on-Tuesday of each-week subsequently, 15 run Tuesday-through Friday..
16 Mr. Zahnleuter you were going to let us.know 17 whether the Court of Claims hearing rooms for the state might 18 be available; am I correct in.that? -
19 MR. ZAHNLEUTER:
Wel1~, as ~I recall, and this is.
20 consistent with past practice, :the board approached the court 21 of Claims officials themselves to arrange for the; actual-22 hearing room and for the space for the board;.and.then the 23 parties, through me, approached the Court of' Claims personnel; 24 for the additional space.
25 JUDGE FRYE:
So the-ball is'in our-court.
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'l MR.~ZAHNLEUTER:, May. I: ask,. have, you done. that? >
2-TJUDGE FRYEi
'No, t
3
-MR.
ZAUNLEUTER:'_-It has been'in the past,cif you, 4
would like toimake'some-other< arrangements.
S-JUDGE FRYE:
.No,.no, if1.that-arrangemont'has-been 6
satisfactory'in the past, we'will-continue it. :I didn't.
7 follow up on that_ and..we should have,gso: we will.
8 MR. ZAHNLEUTER:._I-really' don't'think thaLLthere 9
will be a' problem.
It'was just a matter of the'. Court'.of' 10 Claims-officials'were waiting'to hear from'someone-other;.than-
~
11 a party - from an of ficial like yourself,?before they' 12 readjusted the use of their rooms.-
O
~
13 JUDGE FRYE:
We will call.this afternoon.'
14 MR. ZAHNLEUTER:
All right.
15 JUDGE FRYE:
Ilthink~that_ covers leverything on'the 16 agenda.
17 MR. PIRFO:
Judge,.on t'he.locati_on, if we just 18 raise the question of the' security: matters',_what kind-of 19 security will be provided~forcthe hearings this time around_?.
20 Typically, in the,past, it's been juststhe_one Suffolk County:
21 police officer, who is usually-not too easily-found,f given.
22 what happened recently in.the~ limited publicfappearance.
23 experience-which is the most recent-experience I have had up 24 there with a lot of public hearings,-therelwill.be4 a' lot'of:
25 attention on this.
I.'am just wondering _whether counsel for ACE-FEDERAL REPORTERS, SINC.
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New York State has madejany ingdiriesion thisEscore.-
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understood that was -- thatiliallisasiin,his. court.-
i 13
- MR. ZAHNLEUTER:
Ilam sorry,.youlunderstood-that-
- 4
- security was ;in the State ofENew L York ? si court?:
'5' MR. PIRFO:L It? s - a New YoSk StaLei building.
- -I-6 assume.they would be' ultimately responsible'for-iti b
7 MR. ZAHNLEUTER:.Let'me'say that Irwas1at:the i
8' limited appearance statements.
I don't. recall;anyfsecurity 9
problem at all.
I don't think I-have:ever seen.anyDsecurity'-
10 problem at'a hearing.
11 MR. PIRFO:
There was a large-SuffolkiCounty
~
~
12 police presence at those hearings.
Security was evident.
i O.
j 13 Typically when you have a-visible security presence,-then' 14 there-is not a problem.
The problem I have-is that;there has-i 15 not been such a visible presence'at'the other hearings, at i.
16 least the ones I attended last summer.
There was on'e Staf folk 17 County police officer.
18 Other people may feel differently.about this' _..
19 MR. ZAHNLEUTER:
I don't think it's within'my
)
l 20 ability to ask the personnel at the state of fic'e building.:tio 21 increase their security staff.
So, in other words,1 I.1 jus t 22 don't have the ability to respond to:-your request.
~
23 MR. PIRFO:
I am not requesting'you.
I brought.up
~
)
24 the question for the' board to address it.
4 25 JUDGE FRYE:
Let me, I think we have c'hannels that'
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1-exis t with the division of security here.
I will take that 2
issue up wi th them.
I think they have a standard procedure, 3
if they are aware of any particular problem,'they tend to 4
inform us, but we will ask them-directly whether they are 5
aware of any problem.
6 We had another matter we wanted to take up, and 7
that had to do with the contentions.
We have what basically 8
amount to typographical errors which need to be corrected.
9 Do you want me to go through those?
10 JUDGE SHON:
I have looked these over.
The copy 11 that Kirkpatrick & Lockhart so kindly gave us on the 9th of 12 December, which transformed the cut-and-paute copy into
,s
(
)
13 neatly typed copy.
I find a few minor things in it that are 14 mostly typos.
I think there is no reason why we couldn't go 15 through that.
There are probably 15 of them or so.
The 16 first was on page 2, paragraph in the middle of-the page, a
17 third line from the bottom, refers to elements identified in 18 EX 26, and it should read "15-A through I"; on page 3, the 19 heading of EX 15-A, the last line in the heading has the word 20
" considered" misspelled.
It should have another E.in it.
21 On page 11, fourth line from the bottom, there is 22 a sentence that starts "and, the one-three play message."
I 23 don't think a comma should exist there, but I will submit to 24 the others if they prefer it.
(^'s 25 Page 22, near the top of the page, there is a LJ ACE-FEDERAL REPORTERS, INC.
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sentence that says "those companies are relied upon in the 2
LILCO plan, however, for 15 ambulances and 45 ambulances, all 3
57 of which-are," and then it goes on,;11 and 45 usedto add 4
to 56.
I don't know which of these is,the error, whether 5
there is one of the subnumbers wrong or the, addition is
~
6 wrong.
7 On page 25, in the heading that reads " contention 8
EX 21," and then goes on, "subpart L of.EX 15, subpart N of 9
EX 16, subpart K and EQ 20 Q and EX 30 Q constitute an 10 additional basis," I think would better read " constitute 11 additional bases."
These are all very minor things.
12 Oh, I fairly carefully looked at the contentions 13 that are referenced within contentions, and I felt it would 14 be better for this, from the standpoint of clarity and 15 revision, to eliminate from such reference any contention 16 that had actually been denied, that is, that was not 17 admitted.
18 On page 30, the fifth line from the top, 19 contention EX 20-C, is mentioned, and it was -- 20 was not 20 admitted.
So I think I would just take it out.
It.doesn't 21 change the sentence to do so.
22 On page 32, the fourth line from the bottom, third 23 word from the end of the line is "was."
It should be "were" 24 because the subject is " communications."
At page 50, there 7
25 is a paragraph labeled EX 38-N, the second sentence in that (a
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paragraph says, "for example, at 9:16 it was incorrectly 2
announced that the site area emergency had been declared ~at 3
8:23 and that plant shutdown occurred a't 5:15.
The correct
' i 4
times were 8:19 and 5:15.".It seems as.if_the 5:15'isn't l
5 incorrect.
It is mentioned both in the incorrect and correct i
6 part of it.
7 Three lines below that, last sentence in the t
8 paragraph, "the winter population of the EPZ is higher."' The 9
word " higher" is misspelled.
It's missing an I.
10 The top line in page 61 mentions EX 33, which was 11 not admitted.
12 MS. I,ETSCHE :
Which page, your Honor?
13 JUDGE SHON:
Pardon me, 61, the top line, mentions 14 EX 43, 43, which was not admitted.
This next is a change 15 that is fairly lengthy.
You may have to get it from the 16 reporter's notes.
On page 70, just above EX 40-D, the last 17 part of the paragraph that continues from the previous page, 18 in the original cut-and-paste, that paragraph had an 19 additional sentence that read "in addition, by creating 20 public expectations that such evacuation assistance, 21 including directions and guidance as to evacuation routes, 22 was available, when, in fact, it was not, the likelihood is 23 substantially increased that none of LILCO's recommendations 24 for other emergency information would be believed or followed (m')
25 by the public."
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MR. LhNPHER: ).TUdge-Shon,-;thath goes,: a L : the ! end - of..e 2"
40-C?-
1
- 3 JUDGE SHON: -It goescat.;the end:of 40-C, at;;;the _
- 4 end-of the) carryover paragraph, which;I-guess--is.l40-c.
It
~
i 5'
starts of f too' f ar back'. /It: does at theVend of 0 the1 carryover 6
paragraph,~at any rate.. No, -it'_s notMa carryover paragraph.
7-It is at~th'e end ofL40-C, you'areirighti Lith doesri't carry 8-
.over.
9 Page 79, contention EX 42,JI got..:this:by 10-comparison with page,61, and ~ someone. might' want' to. chec'k Tit,;
~
11 but I think th'e sentence should read, : '.' dealt' with ! under lEX:
12.
38, 39, 41 and'50, instead--of: simply a*38'and 39.
In-other O
13 words, there are a couple more.
14 Page 90, the paragraph labeled;EXiS0-B,ifour;: lines 15 from the bottom of the paragraph, since-EX 33 and.35(were not' 16 admitted, I would delete;EX-33 and make?the next set here:on-17 that 3ine, EX 36 through-39.
18 Page 102., in the' middle of. the. paragraph, the; 19 paragraph in the middle-of':the page,:the' paragraph-numbered
'20 (ii), starts with the word " communications," and one.could 21 make either of two changes.
.As it currently reads,.3t1means-22 that communications was dif ficult.
I'wouldusimplyLdrop:the-23 "s" and make:it " communication."- That'sl102.
24 That's.all that-I-had.
I can't guarantee.that;;I 25 caught everything, nor even that all the corrections were' ACE-FEDERAL REPORTERS, INC..
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No one checked 1me'on it.-
-2" M'S./ LETSCHE :: Lone other tliing,. theIboard?
~
134
~ subsequentlyj admitte'd contention i 34, gwhich-idoes (notDappearl in your' versio'n, - and.I: tihin'k. all; the parties.Iared aware of' thgt.1 4
C 5'
JUDGE lSIION:.That'sicorrect.
c
' 6'-
JUDGE FRYE:
When you make_;your corrections,1why 7
don'.t you'-include it?
8 MS. LETSCHE:
You want us to1 redo Nhis?[-
9
' JUDGE FRYE:
It's on a Wordcprocesso'r;Lisn'tEit?I
~
~
. 10 MR. LANPHER:
Do'you.wantito? call'my~' secretary'.
11 too?
12 MS. LETSCHE:
Tell them'they:get to do it?again.
M 4
O 13 JUDGE FRYE:
I think,it's helpful'to1have.
14 everything in one document.
15 MS. LETSCHE: 1 All-- right.
16 MS. MC CLESKEY:
We will 'look_ forward to receiving:
17 it.
18 MR. CUMMING:
With respec't.to that,:.7udge Frye,-in
~
~
19
..the December 4 conference, you indicatedEan' appendix should.
. 20 be attached listing all contentions;that were not= submitted.
21 In the submission which FEMA received,'there was nolsuch' 22 appendix.
23 JUDGE FRYE:
I think, Mr..Lanpher,iyou-hadLdecided 24 you wanted that.
The board has no particular feeling-on-it' 25 one way or the other.
ACE-FEDERAL REPORTERSnlNC; 202-347-3700
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'MR.'CUMMING. The board _actuallyLorderedlit~~
2 D5cember 4.
~
If1--youhavejrescinded1your[ order,:we 3
MR. LANPHER:
4 will gratef ully: thank you y for that. : We will~ find it when we--
5.
need'it.
My secretary would rather not addian appendix to 6
this,?she is_ sick of it.
We'will runlit with'whatever 7
changes.
8 MR. CUMMING:
Judge Frye, FEMA:would request'that'
~
9 the appendix be produced.because I;think:it's significant~---
~
10 MS. LETSCHE:
It's in the context of the 11 contentions.
12 JUDGE FRYE:
Why-do_you need it-cnow2-0
~
13 MR. CUMMING:
Wi th L respect to-tha t, ; actually, : an 14 index to the contentions might'be?helpfu].to._the board, 15 because of-the state of_ testimony preparation thattwe hadito
~
16 go through, we have at least significantly started on-such an.
17 index, which we will be willing toimake for the board andi 18 counsel, if he thought that would materially' help.- Actually,;
19 I have to represent on the recordinow'that the_; wording of.
20 some of these-contentions, while we think?we understand what.-
j 21 the contention means, even in compiling.an index,-that--was,.
22 in some cases, open-as the judgmentJand differing _ judgments 23 as to what the contention was attempting to pose.
Bu t '
l 24 realizing the-board has already ruled on the basis,.
j.
25 specificity of the contention, and'is. satisfied at this ACE-FEDERAL REPORTERS,'INC.
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point, all we believe is that the lndex'might be helpful.
2 If the parties cannot agree on an index, that 3
might precipitate the board's consideration of whether the 4
contention is properly focused.
5 MR..LANPHER: -Judge, we will.do a. table of' 6
contents.
I don't know what more we can do.
7 JUDGE FRYE:
The board has no problem if you want 8
to file an index.
It may be helpful.
CertEinly we would not
~
9 tell you not to do that, if you are. inclined to do it.
10 I think a table of contents would also help.
11 MR. CUMMING:
It's work product, so we are not 12 inclined to do it if you don't feel it's helpful.
We believe k_
13 that it materially enhances the organization of the 14 contention.
15 MR. IRWIN:
LII,CO has no objection if anybody L6 wants to produce it.
Judge Shon, you clarified a' number of 17 items which I had raised in point 3 of my letter and that 18 makes life a lot simpler.
19 There is a second dimension to our inquiries, 20 though, that relates particularly to contentions which, while 21 not admitted separately, were stated to be dealt with-under 22 the rubric-of another contention.
We have understood that 23 what the board intended was that the factual allegations, 24 which were incorporated into us, let's call it a " host
/~)
25 contention," were admissible for the purposes of alleging the
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problem alleged in the host contention.
2
.But that that was the purpose for their admission, 3
not the separate purpose for which they might have been 4
alleged in the contention which had been rejected.
Do I S
understand the board correctly on that?
6 JUDGE SHON:
That was the intent.
7 MR. IRWIN:
In other words, if contention -- Kathy 8
McCleskey says she didn't understand what I just said.
9 That's a pretty good sign I didn't make myself cicar.
But to-10 give an example, contention 23, as I understand it, has been 11 incorporated into or been treated under the rubric of 12 contention 50.
What I understand is that the f actual
,\\.")
13 allegations in contention 23 are admissible for the purposes 14 of alleging a training problem with respect to the 15 contention, but not for the separate contention of alleging 16 what would have been the purpose stated in contention 23.
17 JUDGE SHON:
That was certainly the board's 18 intent, but when you ask me that as a general question, I 19 can't say that either I or the board then constituted and 20 carefully considered all the ramifications in each of the 21 contentions.
So, there might be some dispute that still 22 exists, particularly since different people can read 23 different things different ways.
24 JUDGE FD/E:
I would have to go back and look.
I
(')
25 don't recall now in the original order, ruling on
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contentions, some contentions were consolidated as opposed to 2
being subsumed, or language to that effect.
If a contention 3
was consolidated, it would seem to me that it is 4
independently admitted.
5 On the other hand, when the board said this' raises 6
essentially the same factual matter as another contention; 7
and, therefore, is subsumed within it, I think your 8
interpretation is correct.
9 MR. CUMMING:
Judge Frye, since other counsel 10 sought clarification, the contentions repeatedly use the 11 phrase " fundamental flaw" with respect to drafting of its 12 testimony, FEMA has relied on the' definition of " fundamental 13 flaw" which appears in ALAB 843 Sharon Harris footnotes 771.
14 If pursuant to the board's order of December 11, FEMA cannot 15 speak to certasn other issues, particularJy defining language 16 used in NRC regulations, if that understanding of FEMA with 17 respect to what a fundamental flaw is, which does, in fact, 18 determine to some degree what our testimony will be, I guess 19 we would like some clarification from the board, as if our 20 understanding of the use of ALAB 043's definition of 21
" fundamental flaw" is incorrect.
22 JUDGE FRYE:
I think you will get that In an 23 initial decision.
24 MR. PIRPO:
Judge Frye --
/7 25 JUDGE FRYE:
While dealing with FEMA, we did v
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1 neglect there was a question of when your testimony should be 2
presented.
We concur with you it should be last.
3 MR. CUMMING:
Fine, your Honor.
4 MR. PIRFO:
If I may bring up a more mundane 5
matter, Tuesday, March 10, the his tory has ' been in the pas t, 6
Tuesday in March we typically start an hour, hour and a half 7
later.
Would you be following that tradition in this as 8
well?
9 JUDGE FRYR:
I was unaware of that.
I was-assumed 10 that everybody would travel, those who need to travel would 11 travel on Monday afternoon and we can start-promptly on 12 Tuesday morning.
c.
(s) 13 MR. IRWIN:
That would be LILCO's preference.
14 MR. LANPHER:
I don't know if it's a firs t week, 15 there has been an early morning USAir flight into ISLIP which 16 was convenient.
It keeps changing.
It's a fairly early 17 morning flight that gets in at 8:55 which allowed some people 18 to come up that morning and be at a hearing at 10:00 a.m.,
19 but not at 9:00 a.m.
I think that was in the context of what 20 was being raised.
As of right now that flight gets in in 21 8:55 a.m.,
so it doesn't result in a big delay in the start 22 of the hearing.
In the past also that flight has gotten-23 changed so you get in at 10:00 or 10:30.
Who knows what 24 USAir is going to do.
Right now it gets at 8:55 a.m.
f'.J')
25 JUDGE FRYR:
Let's start the first week at 9:00.
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This board likesito_ travel the[ day" T
'l JUDGE PARIS:
^
2
-before, s
~
-3 JUDGE FRYE:
Particularly in March.
Iffthet 4
. weather' turns out"t'o be' bad an'd1we'starticut that._ morning, Ewe
~
~
L5-could have a problem..
6 one other matter of(clarification, I-didn'tRask 7
for the-attorneys to-identify-tliemselves initially.
8 Mr. Bordenick.is conspicuous-lby h'is--absence.
.I~h'ad heard-9 perhaps he was no longer assigned to'this: case.'
10 MR. REIS:
That's correct; your. flonor_.
Th'e1 11 present attorneys on this' case.are lead attorneys.
The.leaEic 12 attorney is Mr. Karman, sitting over here -- rather, I am:
O 13 sorry, George Johnson, who cannot1be hereitoday$becauseLhe,'
14 had a conflict.
35 JUDGE FRYE:
11e i r ~ the ;-lead attorney?'
16 MR. RPIS:
He'is the lead attorney.
After_that is-17 Mr. Karman, Mr. Pirfo,- Mr. Bachmann'and Mr.LBarth.
I have=
18 staffed up the case.
They will-be the attorneys'in'this 19 proceeding.
20 JUDGE FRYE:
Anything else:we need-to takefup, 21 have we covered all the points?
22 Thank you very'much,-we'will see you on March'10.
23 (Whereupon, at 12 : 00 p.m., _'the prehearing-24 conference was concluded.)
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202-347-3700 Nationwide Coverage 800-336-6646
CERTIFICATE OF OFFICIAL REPORTER O
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 DATE:
TUESDAY,' FEBRUARY 10, 1987 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Cormnission.
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WENDY S.
COX Official Reporter ACE-FEDERAL REPORTERS, INC..
Reporter's Affiliation J
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