ML20212G029
| ML20212G029 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/03/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#187-2770 OL-3, NUDOCS 8703050244 | |
| Download: ML20212G029 (17) | |
Text
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OllGINAL UN11EU STATES n
] NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 50-322-OL-3 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Powerr Station, Unit 1)
TELEPHONE CONFERENCE O
LOCATION:
WASHINGTON, D.
C.
PAGES:
17295 - 17309 DATE:
TUESDAY, MARCH 3, 1987 1
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I ACE-FEDERAL REPORTERS, INC.
r OfficialReporters 444 North Capitol Street Washington, D.C. 20001
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3703050244 870303 ADocF. 0500gjy yon NADONWIDE COVERACE
17295
.CR30063.0-DAV/sjg 1
UNITED STATES OF-AMERICA
(
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2 NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x In the Matter of:
5 Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY 6
(Shoreham Nuclear Power Station, 7
Unit 1) 8
X 9
Ace-Federal Reporters, Inc.
Suite 402 10 444 North Capitol Street Washington, D.
C.
11 Tuesday, March 3, 1987 12 The telephone conference in the above-entitled matter
. (~l 13 convened at 4:00 p.m.
s/
14 BEFORE:
15 JUDGE MORTON B. MARGULIES, Chairman 16 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 7
JUDGE JERRY R.
KLINE, Member 18 Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission 19 Washington, D.
C.
20555 20 JUDGE FREDERICK J.
SHON, Member Atomic Safety and Licensing Board Panel 21 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 22 23 24 c
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25 ACE-FEDERAL REPORTERS, INC.
202 347-3700 Nationwide Coverage 804 33 H 646
17296 1
APPEARANCES:
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On behalf of the Applicant:
3 DONALD P.
IRWIN, ESQ.
4 JAMES CHRISTMAN, ESQ.
Hunton & Williams 707 East Main Street 5
P.
O.
Box 1535 Richmind, Virginia 23212 7
On behalf of Suffolk County:
8 LAWRENCE COE LANPHER, ESQ.
DAVID CASE, ESQ.
9 Kirkpatrick & Lockhart South Lobby, Ninth Floor 10 1800 M Street, N.W.
Washington, D.
C.
20036-5891 11 On behalf of the State of New York:
2 RICHARD J.
ZAHNLEUTER, ESQ.
13 Deputy Special Counsel to
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the Governor 14 Executive Chamber Capitol, Room 229 15 Albany, New York 12224 16 On behalf of the Nuclear Regulatory Commission Staff:
17 GEORGE E. JOHNSON, ESQ.
g RICHARD G. BACHMANN, ESQ.
MYRON KARMAN, ESQ.
19 EDWIN J.
REIS, ESQ.
U.S. Nuclear Regulatory 20 Commission Washington, D.
C.
20555 21 22 23 24
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25 ACE-FEDERAL REPORTERS, INC.
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P R O C.E E D I N.G S
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JUDGE MARGULIES:
This is Judge Margulies.
With 3
me are Judges Kline and Shon.
4 We received this request today from Suffolk 5
County, the State of New York and the Town of Southampton, a.
6 motion to compel LILCO to permit a site visit.
7 We contacted the parties.
FEMA had no one there 8
to responde to the telephone call, so they will not be 9
participating.
10 Could we just review who is participating for the 11 individual parties.
12 For'the County?
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13 MR. LANPHER:
Larry Lanpher, also David. Case is 4
14 also present in my office.
15 JUDGE MARGULIES:
Who is appearing for the State 16 of New York?
17 (No response.)
18 JUDGE MARGULIES:
Mr. Zahnleuter was supposed to l-19 be on.
Is the operator on?
20 (No response.)
21 MR. LANPHER:
I have given the number to 22 Mrs. Wilder.
23 JUDGE MARGULIES:
Just hold on and I will see if 24 we can reach him.
Do you have his number, 518 474-3522?
1
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25 MR. LANPHER:
That's right, sir.
l ACE FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coverage 800-336-6646
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,-f,DAVbw 1-JUDGE MARGULIES:
We'll see-if we can get hold of m
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2 him, sir..
3 (Discussion off..the record.)
4 JUDGE MARGULIESt Okay.
For LILCO, we have 5'
Mr. Irwin and Mr. Christman.
Is that correct?
6 MR. IRWIN:
That's correct.
7
~ JUDGE MARGULIES:
For NRC Staff, we have 8
Mr. Bachman,. Mr.. Johnson, Mr. Reis and Mr. Karman.. Is.that-9 correct?
10 MR. BACHMAN:
That.'s correct, your Honor..
11
. JUDGE MARGULIES:
Do we have anyone else 12 appearing for the Intervenors aside from our attempt to get
, l' 13 Mr.,Zahnleuter?
14 MR. LANPHER:
This is.Mr. Lanpher'and Mr. Case.
.15 for Suffolk County.
16 JUDGE MARGULIES:
Mr. Zahnleuter should be on.
17 very shortly.
p 18
'Is Mr. Zahnleuter on now?
19 MR. ZAHNLEUTER:
Yes, I am.
20 JUDGE MARGULIES:
Fine.
We will proceed.
21 What we do is, we have Intervenors Motion to 22 Compel, to which was attached a letter of February 26 from 23 Mary Jo Lugars to Mr. Zahnleuter and a letter from 24 Mr. Zahnleuter to Mary Jo Lugars.
We do not have Applicants 25 position on this n.atter.
II' ACE-FEDERAL REPORTERS, INC.
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MR..CHRISTMAN:
I sa prepared to state that, 2
Judge.
This is' Jim Christman.
Would you-like me - to do that 3
now?
4 JUDGE MARGULIES:
Would you, please.
5 MR. CHRISTMAN:
I-have four points to make.
One s
6 is, this pleading from the County and State suggests.that 7
LILCO is trying to prevent the site visit.
That is not 8
true.
This is the second time that.we've scheduled a site 9
visit.
The site visit will go forward tomorrow on some.
10 terms.
The only question now is -- second, tx) the extent 11 this paper suggests that the State and County are offering 12 to compromise --
13 JUDGE'MARGULIES:
We have difficulty 14 understanding you, Mr. Christman. 'Maybe if you could move 15 closer to the telephone.
J 16 MR. CHRISTMAN:
I've got it up against my lips.
17 This is a New York State Telephone.
I'll just have to talk 18 louder.
19 Can you hear me better'now?
20 JUDGE MARGULIES:
Yes.
21 MR. CHRISTMAN:
Good.
My first point was that we 22 have twice scheduled this site visit, and we are prepared to 23 go forward tomorrow.
We're certainly not trying to prevent 24 the site visit.
We are only trying to settle the terms.
25 Point number two.
The pleading from the State
/\\CE FEDERAL REPORTERS, INC.
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and County suggests they have offered a reasonable 2
compromise, and that they will give us only such data as 3
they collect that they think they will be relying on.
This 4
is not a compromise at all.
5 On Friday afternoon, Mr. McMurray told me in a 6
deposition of one of my witnesses that he had an absolute 7
right to any information we would be relying on, whether we 8
thought it was work product or not.
So the compromise 9
they're offering is a compromise.
It is no more than.what 10 they had stated they would give out anyway.
11 The third point is that their posi'. an is, they 12 could take data on my client's property, whicl. is
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N-13 unfavorable to their case, and give us only what they need 14 to rely on, which means what is favorable to their case.
15 That is exactly the position they are stating.
It is 16 completely contrary to the whole idea of pretrial 17 discovery.
18 Finally -- well, the next to last point.
19 To the appoint they are claiming that taking 20 photographs or videos and pictures -- it's not clear which 21 they mean -- and radiation measurements, to the extent they 22 are claiming those are attorney work products, they seem to 23 be saying that the taking of those pictures and measurements 24 will somehow reveal the thought processes of their 25 attorneys.
That cannot possibly be the case.
It is ACE FL..ERAL REPORTERS, INC.
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conceivable to me that if the attorneys were to write a 2
shooting script and specified to their technical experts 3
beforehand where the measurements must be taken and where 4
the pictures must be taken, that that might,to a slight 5
degree, reveal the thought processes of the attorneys, but 6
we will have that information anyway, because they will be 7
taking measurements and pictures in our presence.
8 The data that they want to take.
That is, the 9
photographs themselves and the radiation rates are data.
10 They are facts about the material world that cannot possibly 11 reveal the thought processes, strategies or legal theories 12 of their lawyers.
That is what the work product doctrine is aO
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13 supposed to test.
14 Finally, all LILCO is trying to do, really, in 15 this case, is prevent a lot of needless delay, wasteful 16 filing of pleadings later on.
In the first place, if we're 17 not c11 owed to have an agreement or board order entitling us l
18 to these pictures, data and measurements, we will have no 19 choice but to have one of LILCO's people follow the county 20 and state people around trying to duplicate their 21 photographs and duplicate their measurements.
That will 22 take a long time and require us to stop at each point and 23 try to duplicate the State and County's ef fort.
And that is 24 simply wasteful.
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25 Likewise, it is wasteful for us to have to do ACE FEDERAL REPORTERS, INC.
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and then come back later on and file a lot of pleadings, 2
seeking this information.
3 It is much less wasteful to simply have 4
agreement or in this case, an order in advance.
5 That's all I have to say, Judge.
6 Was I heard?
7 JUDGE MARGULIES:
Yes.
Very clearly.
Thank 8
you.
9 Do the Intervenors wish to respond?
10 MR. ZAHNLEUTER:
Yes, Judge Margulies.
11 MR. ZAHNLEUTER:
This is Richard Zahnleuter from 12 the State of New York.
's /
13 Thank you for convening this call on short 14 notice.
I'll be brief, because we stated our position in 15 the papers, but what we are trying to do is exercise our 16 right under 2.74, one of the regulations that says that any 17 parties may serve on any other party a request to permit 18 entry upon designated land for the purpose of inspection, 19 measuring, surveying, photographing, testing or sampling the 20 property or any object or operation thereon.
21 What we propose to do to take photographs and 22 make measurements at the site.
The problem is that LILCO is 23 requiring us to guarantee that all pictures and measurements 24 that will be taken will be turned over to LILCO.
The O)
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25 problem is heightened because LILCO has said that if we do ACE-FEDERAL REPORTERS, INC.
202-W J00 Nationwide Coverage 800-336-6616
0630 01 07 17303 (s DAVbw 1
not agree to that condition, we will not be allowed to take 2
our equipment onto the site.
3
. What we are proposing is that this be handled-4 like any other normal procedure, and that after we take the 5
pictures and the measurements and we know what we are 6
dealing with, for one thing, that LILCO file a discovery 7
request for the materials, and that we respond to the 8
discovery request in the ordinary way that the rules 9
contemplate.
10 We have, in an attempt to reach a settlement.to-11 this, offered in advance of the site visit, to provide LILCO 12 with any pictures or measurements we will rely on in our
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13 testimony, but LILCO has rejected the offer, and that is why 14 we have had to come to you.
15 I do think that what is taken on site is attorney 16 work product, because a site visit is being conducted at the 17 direction of counsel and in the presence of counsel.
If 18 LILCO needs to obtain this information, LILCO can do it at 19 any time, because it is LILCO's property and LILCO has 20 control over it, and also LILCO can accompany us on the site 21 visit.
22 I have nothing else to add.
Do you have any 23 questions.
24 JUDGE MARGULIES:
Just one minute.
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25 MR. LANPHER:
Judge Margulies, this is ACE FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 800-33&6M6
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0630.01 08 17304
()DAVbw-1 Mr. Lanpher.
I can add only one brief comment.
That is, 2
Mr. Christman implies that the attorney work product 3
doctrine protects only opinions and strategies offcounsel.
~
4 That is not correct.
It also protects facts developed by 5
counsel.
Those facts are discoverable, only if there is a 6
demonstration that the party seeking the discovery cannot 7
otherwise discover the same fact.
8 This is a situation where LILCO would be in a 9
position to discover the same fact by taking its own 10 measurements.
11 So I think the characterization of what the work 12 product doctrine protects was not accurate in the previous 13 oral discourse by Mr. Christman.
14 I agree with Mr. Zahnleuter that it is not proper-15 for LILCO to attempt to condition the government's right to 16 conduct discovery by LILCO seeking a precondition to that 17 discovery.
18 Thank you very much for your attention.
19 JUDGE MARGULIES:
Does Staff have anything to add 20 to this?
21 MR. BACHMAN:
Judge Margulies, this is Richard 22 Bachman.
Inasmuch as this is a discovery dispute between 23 the Applicants and the Intervenors, Staff will take no 24 position on it.
Thank you.
k_)s 25 JUDGE MARGULIES:
The Board will recess and give ACE FEDERAL REPORTERS, INC.
202 347 3700 Nationwide Coverage 800 336-6M6
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you our decision.
Thank you.
2 (Pecess.)
3 JUDGE MARGULIES:
This is Judge Margulies.
4 The Board-is ready to render its decision.
We 5
find that the regulations are quite clear.
2.741 permits 6
entry upon the designated land for the purpose of inspection 7-and measuring.
We feel that the Intervenors have the right 8
to do so.
We have the arguments of the situation involving 9
wasteful action on the parts of each side.
We find that if 10 the parties would act cooperatively, there wouldn't be any 11 waste present, that the regulations could be complied with 12 in an orderly manner, and that we wouldn't have-had to n
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13 participate in this type proceeding.
14 We look upon the entire matter as being 15 wasteful.
16 The Board rules that the regulation itself is to 17 be applied strictly, and it isn't too late for the parties 18 to still cooperate and take care of this in a manner that is 19 not wasteful.
If any waste is involved, it is the fault of 20 the parties.
21 Our ruling is that the regulations do permit the 22 Intervenors to make their measurements and to do their 23 photographing without conditions.
24 MP. LANPHER:
Thank you very much, Judge.
25 JUDGE MARGULIES:
Is there anything further?
ACE FEDERAL REPORTERS, INC.
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MR. IRWIN:
This is just a question of 2
Mr. Zahnleuter.
We need-a specification of the equipment 3
that is to be brought on the site.
We don't need the Board 4
for that.
5 JUDGE MARGULIES:
Thank you very much.
Goodbye.
6 MR. CHRISTMAN; I guess we are going to have 7
another impasse over one last witness.
The State has-8 designated Mr. Marsh.
The present situation is that he is 9
not being offered for deposition until at least the 16th of 10 this month, which is the Monday after the close of the 11 period.
12 We need to know -- let me put it this way.
The 13 way LILCO interpreted your order of last week, discovery 14 cut-off is the 13th and all depositions must be finished by 15 then.
If we are not able to finish the depositions by then, 16 sir --
17
' JUDGE MARGULIES:
We can't hear you, 18-Mr. Christman.
19 MR. CHRISTMAN:
I'll try to talk louder.
20 The State witness, Mr. Marsh, has only been 21 offered for deposition on the 16th of March.
That is after 22 the March 13th cut-off of discovery.
We believe Mr. Marsh 23 should be made available before the 13th, so we can meet the 24 13th deadline.
The State position is that they believe that 7-(_)
25 finishing that deposition on the 16th is acceptable.
We ACE FEDERAL REPORTERS, INC.
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disagree.
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2 Can we have a clarification from the Board on 3
that point?
- i 4
MR. ZAHNLEUTER:
This is Richard Zahnleuter.
I 5
am looking now at the letter of February 20,\\-1987, to the 6
Board from Christopher McMurray.
That was the letter that 7
the Board had before it during the last conference call.
At 8
that time, Lang Marsh had been placed into the schedule for 9
Monday, March 16th',. and I believe that this' was contemplated
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10 by all the parties.
At least it l's c1'sar on its face from 11 the letter, it is not a late change'.
It is the same date 12 that w$ have set before tihe previous conference call.
The
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~ 13 date is a Monday following the Friday, which is the 13th..
14 I believe that at the most, this is an oversight e
15 on the part of the Board, because it was set forth clearly 16 in the letter of February.20th,4but the reason why Lang MarshisdesignatedfohwIepositiononMondaythe16th, is 17 18 because in the prior week, March 10th through 13th, I have 19 to.be present beforeJudgeFryeintheexercichproceeding, 20 the actyal hearing.
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21 That left only Monday of that week, March 9th, l
22 and the following Monday, March 16th.
So March 16th is the
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23 result of the best effort that I can put forth and also the 24 result of Lang Marsh's availability for deposition.
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25 So in summation, the two points that I would like ACE FEDERAL REPORTERS, INC.
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to make are that this deposition was before the Board on s.s s j2 February 20th, and I believe it was contemplated that that 3
would be the date when all of the parties had the schedule 4
before them.
Also, it represents the best effort that I and 5
Mr. Marsh can make.
6 MR. CHRISTMAN:
If I may address those two 7
points, Judge.
/d JUDGE MARGULIES:
Please do.
9 MR. CHRISTMAN:
Number one, when we put those
).
10 pleadings before you, including the that letter, all parties 11 agreed that we had concluded only a very tentative schedule 12 for-the purposes of discussion.
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13 Second, our position on why the State of New York 14 can only designate one lawyer for this proceeding is 15 well-known, and I will not repeat it, but suffice it to say 16 that we thought, notwithstanding that tentative schedule 17 that when the Board said that the 13th was the cut-off, and 18 that it would extend the schedule one week, but would not 19 allow any more delays, we thought that meant the 13th was jj
, 20 the deadline.
L.
2 C'-
21-I guess all we're asking for is a clarification.
I
~22 3;
JUDGE MARGULIES:
Just one minute.
i 23 (Discussion off the record.)
24
' JUDGE MARGULIES:
The Board is back.
b) 25 The Board, in viewing the March 16, 1987 date to s_
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hear Mr.gMarsh, it 'was viewed as_ a.date that was agreed
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7 2
upon by the parties, and:-although it was to occur after the 3
' March 13th cut-off date, we considered-that as not to be s
4 violative of that; March 13th date.
5 We didn't say anything to that effect in our 6
order,-in the belief that the parties had already a) greed to-
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7-that March 16th date, and we are going to abide by it.
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8 MR. ZAHNLEUTER:
Thank you very much..
9 MR. CHRISTMAN:
That takes care of us.
10 JUDGE MARGULIES:
Thank-you.
f 1,1 Goodbye now.
12.
(Whereupon, at 4:30 p.m. the telephone conference 13 was concluded. ).
14 e
15 16 17 18 19
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21 22 23 24 1
25 i
ACE FEDERAd REPORTERS, INC.
202-347-3700 Nationwide Coverage 800-336-6646
CERTIFICATE OF OFFICIAL REPORTER This is to certify that' the attached. proceedings before the UNITED STATES NUCLEAR-REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
DOCKET NO.:
50-322-OL-3 PLACE:
WASHINGTON, D.
C.
DATE:
TUESDAY,' MARCH 3, 1987 were held - as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt) d4 8e (4E (TYPED)
' gf DAVID L.
HOFFMAN official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation O
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