ML20214S426
| ML20214S426 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/04/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#486-1831 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8612080285 | |
| Download: ML20214S426 (93) | |
Text
OlGNA_
O UhlTED STATES NUCLEAR REGULATORY COMMISSION
. IN THE MATTER OF: DOCKET NO: 50-322-OL-5 (EP Exercisei LONG ISLAND LIGHTING COMPANY (Shorenam Nuclear Power Plant, Unit 1) t O
~
LOCATION: BETHESDA,' MARYLAND PAGES: 1- 90 DATE: THURSDAY, DECEMBER 4, 1986 A
f ACE-FEDERAL REPORTERS, INC.
OfficialReporters 444 North CapitolStreet Washington, D.C. 20001 8612080285 861204 (202)347-3700 PDR ADOCK 05000322 T PDR NATIONWIDE COVERAGE
11400101 1
(~s]
s marysimons UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION 2 ATOMIC SAFETY AND LICENSING BOARD 3 --------------X 4 In the Matter of: :
- Docket No. 50-3220L-5 5 LONG ISLAND LIGHTING COMPANY: ASLBP No. 86-533-01-OL 6 (Shoreham Nuclear Power :
Station, Unit 1) :
7 :
X 8
Nuclear Regulatory Commission 9 5th Floor Conference Room East-West Towers 10 4350 East West Highway Bethesda, Maryland 20814 11 Thursday, December 4, 1986 12 C) The meeting of counsel in the above-entitled 13 matter convened, pursuant to notice, at 10:00 a.m.
14 BEFORE:
15 JOHN H. FREY, III, Chairman
, 16 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 17 East-West Towers 4350 East-West Highway 18 Bethesda, Maryland 20814 19 DR. OSCAR H. PARIS, Member <
Atomic Safety and Licensing Board i 20 U.S. Nuclear Regulatory Commission j East-West Towers 21 4350 East-West Highway Bethesda, Maryland 20814 22 FREDERICK J. SHON, Member 23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 24 East-West Towers 5 4350 East-West Highway
(~/
s_ 25 Bethesda, Maryland 20814 ACE-FEDERAL REPORTERS, INC.
202-347-3'00 Nationwide Coverage 8fu 336-6646 l
l
N ' 11400101 2 marysimons APPEARANCES:
1 On Behalf of LILCO:
2 DONALD P. IRWIN, ESQ.
3 KATHY E. B. McCLESKEY, ESQ.
LEE B. ZEUGIN, ESQ.
4 Hunton & Williams 707 E. Main Street 5 Richmond, Virginia 23212 6 On Behalf of Suffolk County:
7 KARLA J. LETSCHE, ESQ.
LAWRENCE COE LANPHER, ESQ.
8 HERBERT J. BROWN MICHAEL S. MILLER, ESQ.
9 Kirkpatrick & Lockhart Eighth Floor 10 1900 M. Street, N.W.
Washington, D.C. 20036 11 On Behalf of the State of New York:
() 2 RICHARD J. ZlHNLEUTER, ESQ.
13 Special Counsel to the Governor Executive Chamber 14 Room 229 State Capitol 15 Albany, New York 12224 16 On Behalf of FEMA:
1 17 WILLIAM R. CUMMING, ESQ.
i Federal Emergency Management Agency -
18 500 C Street, S. W.
i Washington, D. C. 20472 19 On Behalf of the NRC:
20 BERNARD M. BORDENICK, ESQ.
21 ORESTE RUSS PIRFO, ESQ.
EDWIN J. REIS, ESQ.
22 ROBERT G. PERLIS, ESQ.
U.S. Nuclear Regulatory Commission
! 23 7735 Old Georgetown Road Bethesda, Maryland 20814 24 0 25 l
l l ACE-FEDERAL REPORTERS, INC.
1
. _ . _ . . "t'?" T":T":"* _ ._ _
3
('s 11400101 marysimons PROCEEDINGS 1
JUDGE FRYE: Good morning.
2 I'm Judge Frye. On my right is Judge Paris and 3
you all know Judge Shon.
4 Could I ask the parties if they would introduce 5
themselves for the record, please.
6 MR. BORDENICK: Bernard M. Bordenick, Office of 7
the General Counsel, U.S. Nuclear Regulatory Commission, 8
Washington, D.C. 20555. On my right is Edwin J. Reis, on '
9 his right is Oreste Russ Pirfo and on Robert G. Perlis all 10 of the same office.
11 JUDGE FRYE: Thank you very much.
22 C) MR. CUMMING: Your Honor, you said the parties, 13 but I am counsel for the Federal Emergency Management 14 15 Agency, William R.-Cumming.
JUDGE FRYE: Thank you.
16 17 MR. IRWIN: Judge Frye, my name is Donald Irwin.
18 I am fr m Hunton and Williams in the Richmond office and gg counsel for Long Island Lighting Company. With me on my right is Katherine McClosky also of our firm, and on my left 20 21 is Lee Zeugin also of our firm and also counsel for LILCO.
22 JUDGE FRYE: Thank you.
23 MR. ZAHNLEUTER: Good morning, Judges. I am 24 Richard J. Zahnleuter representing the State of New York.
25 JUDGE FRYE: Thank you very much.
ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coverage 800-336-M>46
~11400101 4 marysimons 1 MS. LETSCHE: I am Carla J. Letsche with the law 2 fir ~m of Kirkpatrick and Lockhart. With me are Herbert H.
3 Brown, Lawrence Coe Lanpher and Michael S. Miller. We 4 represent Suffolk County.
5 JUDCL FRYE: Thank you very much.
6 And the Town of Southampton is not present, I 7 take it, or are you covering for them as well?
8 MS. LETSCHE: Yes, we are.
9 JUDGE FRYE: Okay. Thank you.
10 I thought as a preliminary matter, Mr. Whezstine
- 11 is sitting in the room and has had some conversations, and I
() 12 thought it might be helpful if he outlined the information 13 that he has gathered with regard to the possibility of
- 14 computer transmission of documents so that we would have it 15 in one place and all know where it stands.
16 Jack.
i 17 MR. WHEZSTINE: I pulled some information 18 together from several parties, Kirkpatrick and Lockhart, 19 Hunton and Williams, FEMA and the Staff. With the exception
{ 20 of the staff, we have all got different computer equipment.
21 Kirkpatrick and Lockhart has a Syntrex, Hunton and Williams I
22 has Barrister equipment, FEMA has Wang and we have IBM along 23 with the Staff.
l l
24 Problems are incurred when you file transferring l
l 25 documents from non-like equipment, like IBM, different ACE-FEDERAL REPORTERS, INC.
202-347-37tN) Nationwide Cos erage both336-%46 I - , , _ , . . - . - . . _ - _ _ _ . , _ . . . _ . , . . _ . . , . _ _ . _ _ _ . . - . _ - _ _ _ _ . _ ._. . _ . _ . , - - _ . _ . _ . , _ _ . _ _ - . . . _.
.. _ .~ -. -- - . - . _ .
11400101 5 marysimons 1 manufacturers. For example, with Hunton and Williams they 2 have Barrister equipment and their word processing is done 3 on that equipment, and when they communicate to NRC they are 4 going to have to download to a PC.
5 The problem there in downloading is that you 6 strip the document of all the formatting codes, or most of 7 them. So when the document is then sent over to NRC it is 8 not formatted. So we would have to reformat it. That could 9 be a problem for the Board.
10 Kirkpatrick and Lockhart would have the same type 11 of problem, although they also have another problem, which
() 12 is that they are moving their equipment on the 12th and the 13 13th of December, but barring from that there are the same i 14 type of problems of downloading their word processing l
l 15 document to a PC and transmitting it over.
l 16 JUDGE FRYE: The gist I got out of it is that it 17 simply won't work at this point.
18 MR. WHEZSTINE: It's workable, but I would say 19 before I made a definite conclusion we would have to do some 20 testing.
j 21 I made a contact with Barbara Whittington from 22 Hunton and Williams and she is planning to download a 23 document to a PC and then send it over to us via a Cross-24 Talk PC transfer package.
( 25 JUDGE SHON: There is of course not just us l
! ACE-FEDERAL REPORTERS, I~NC.
202-347-3700 Nationwide Cm erage SNL136-6646
l l
11400101 6 marysimons 1
1 involved in this. There are the other parties. If one l
l 2 party wished to serve a document on the Board and all 3 parties, each of the other parties on the downloaded l
l 4 i document would have to reformat it upon receipt; is that 5 right?
6 MR. WHEZSTINE: That is correct.
7 JUDGE SHON: That looks pretty complicated.
8 MR. WHEZSTINE: It is complicated and you have to 9 be familiar with downloading and reformatting. All the 10 parties would have to be familiar with that. So we are 11 still in a testing mode and I still w&nt to do at least one
() 12 test with Barbara Whittington.
13 MR. IRWIN: Judge Frye, I might add one thing to 14 what Mr. Whezstine just said. One of the difficulties of 15 reformatting is that it is very difficult to know exactly 16 how to reformat unless you already have a copy of the actual 17 hard copy which sort of defeats the_ purpose at least in 18 terms of expedited document transmission.
19 If one is interested in essembling a data base 20 l where verbal content rather than format or intelligibility 21 is paramount, then it might work. But as I understand it, 22 the Board's primary interest was in expedition of 23 transmission of documents.
24 What Mr. Whezstine said is exactly right, with 25 the additional complication that you have to see it before ACE-FEDERAL REPORTERS, INC.
202-347-37(4) Nationwide Coserage 8(4336 6M6
r^x
(_) 11400101 7 marysimons 1 you can recognize it, and I think that is almost a terminal 2 problem unless you get identical equipment.
3 Now we do have Displaywriter equipment, and we 4 understand that you all have Displaywriter equipment. If 5 all the parties were willing to agree on using and 6 standardizing Displaywriter equipment, we might be willing 7 to do that, although I tell you it would be a sacrifice for 8 us because we have everything else on our main frame 9 computer systems. But short of that, we will have these 10 kinds of problems.
11 JUDGE FRYE: Does Kirkpatrick and Lockhart have
() 12 Displaywriters?
13 MS. LETSCHE: No, we don't. All we have is our 14 central computer system which is Syntrex.
15 JUDGE FRYE: Okay. Well, it doesn't look too 16 promising, but I think it would be worthwhile to run the 17 test that you plan and we will see if anything develops. If 18 it should appear that it would be promising to go ahead with 19 it we will let you know.
20 Any other comments on this particular point 21 before we move on?
22 MR. CUMMING: FEMA's only comment, Judge, is that 23 we think you should continue to work towards the goal of 24 doing this because otherwise it is going to be a difficult b) s 25 task to continue with weight of the paper load, and FEMA ACE-FEDERAL REPORTERS, INC.
202-347 3700 Nationside Coverage 8m336-6M6
f)
(> 11400101 8 marysimons 1 would encourage all the parties to work towards this end.
2 Perhaps we can assists Mr. Whezstine in trying to 3 deternine whether there are ways, inexpensive ways that 4 there can be compatibility between the equipment, since FEMA 5 has a fairly sophisticated communications outfit, for later 6 testimony in this proceeding.
7 So we are encouraging you to proceed on this 8 course.
9 JUDGE FRYE: A data base would be very nice.
10 Frankly, I didn't consider that the first priority because I 11 thought at this stage it might be a little late to try and
() 12 incorporate all of tae discovery that has gone back and 13 forth into a data base.
14 The next point that I had that I wanted to just 15 touch on briefly and I had not intention of ruling on it at 16 this point, but there is the motion to following the rules 17 and there is Hunton and Williams' suggestions for certain 18 procedures that should be followed.
19 And in the absence of some means of transmitting l
20 documents among the parties and the Board electronically, it 21 was my thought that we would notify the parties when we
- 22 ruled by telephone so that all would be advised immediately 23 in that manner.
1
! 24 Now with regard to that point, is it necessary to l rh l k-) 25 notify the State of New York and Southampton separately or i
i
- ACE-FEDERAL REPORTERS, INC.
202-347-3700 Natioriwide Cmcrage 80lk3346646
i.
11400101 9 marysimons 1 can we notify Kirkpatrick and Lockhart?
2 MR. ZAHNLEUTER: I would appreciate separate 3 notification, Judge. Perhaps it can be just another phone 4 number on a list that your secretary would call. Because we 5 are in Albany and because Kirkpatrick and Lockhart is in 6 Washington, D.C., it really is more expedient for us to be l
7 informed by a telephone call.
8 JUDGE FRYE: Okay.
9 And Southampton?
10 MS. LETSCHE: I guess what I prefer to do is 11 check with Mr. Latham and see if he wishes to have his own
() 12 phone call, and I can do that and get back to you.
13 JUDGE FRYE: Or you could notify him, too, I 14 suppose. Once we notify you I suppose you could call him.
15 MS. LETSCHE: Well, we could. I thought the 16 question was whether or not that was acceptable to the j 17 parties. I would be more comfortable checking with him.
18 JUDGE FRYE: Okay.
19 Now with regard to requests for such things that 20 are relatively inconsequential such as extensions of time 21 that don't amount to more than a few days, I think if the 22 partias want to register an objection to that, they should l
23 notify ur by telephone immediately upon receipt of the 24 request or otherwise we will go ahead and rule.
25 Now the next item I had down was I want to review ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 800 3346M6
11400101 10 marysimons I with ---
2 MR. LANPHER: Judge, we should phone, I think it 3 is Mrs. Davis then in your office?
4 JUDGE FRYE: Yes. My secretary is Barbara Davis.
5 MR. LANPHER: I am concerned about ex parte, or 6 that be construed as an ex parte call. For instance, let's 7 say Suffolk County decides that they want to oppose some 8 allegedly inconsequential motion by the staff, are we 9 supposed to then also notify Hunton and Williams and 10 everyone else that we have phoned Barbara Davis? I think 11 that would be a procedure that ought to be incorporated or
(} 12 otherwise you are going to be in a situation where one 13 party, Suffolk County or LILCO or anyone is phoning the 14 Judge's office to let you know ---
15 JUDGE FRYE: I am only contemplating that you 16 would say we object to a request for an extension of time?
i j 17 MR. LANPHER: Pardon?
l 18 JUDGE FRYE: That we object to a request for an l
19 extension of time.
l 20 MR. LANPHER: Well, what I understood what we 21 l were going to do was say we object and we are to file a 22 piece of paper promptly or as soon as possible setting for 23 the basis for the objection. I don't think we should be 24 conveying the substance of the objections to Mrs. Davis.
25 JUDGE FRYE: I agree. Why don't you do that.
ACE-FEDERAL REPORTERS, INC.
l 202 347-3XO Nationwide Coserage 800-336-6646
11400101 11 marysimons 1 Why don't you just say we object and we will file promptly 2 in writing our objections.
i 3 MR. LANPHER: I think there should be an 4 understanding then that everybody has to notify the other 5 parties of the telephone call and the intention.
6 MR. IRWIN: I think that is fair, although I t
7 would be satisfied I guess with a notation on whatever piece 8 of paper was filed that there was a telephone notice to the 9 Board that this piece of paper was coming. I don't feel Mr.
10 Lanpher has to call me and tell me he is about to file a 11 piece of paper as long as the piece of paper is promptly on
() 12 its way and vice versa.
13 That does raise one other point, Judge Frye on t
14 this whole business of expedition of service. There are 15 among most of the parties here excellent electronic I 16 communication means in the form of telecopiers. The staff l 17 has them, the Board has them, Suffolk County has them, LILCO 18 has them, the State of New York has them and the Town of i 19 Southampton does not have them. And all these telecopiers 20 through my experience appear to operate at the rate of at 21 least two pages per minute.
22 It seems to me why that cannot be the presumptive 23 means of serving any documents except the most lengthy
( 24 formal documents. We have urged this on the Board and a i 25 couple of times on the parties, and by and large from i
ACE-FEDERAL REPORTERS, INC.
202-347-37W Nationwide Coverage 80iK3366M6
. , - - - - - - - - - . . - - . - , . - . - , - - - - - - . - - ~ . . . . _ . . . . . . - - -
11400101 12
.marysimons 1 Suffolk County we got reasonable reciprocity on it, but I 2 think it is important to get uniformity on it.
3 There have been problems in dealing with 4 deadlines as a result of the fact that we have not been able 5 to serve, for instance, Southampton by telecopier and two 6 extra days have been tacked on to a response time because of 7 ambiguities, and there have been problems of just 8 inconsistent service, and I think it is worthwhile to iron 9 them out.
10 JUDGE FRYE: It is just a question of between one 11 and two days, isn't it?
12 MR. IRWIN: Sir?
13 JUDGE FRYE: Isn't it a question of between one 4
14 and two uays?
15 MR. IRWIN: It can actually be a question of two I
16 days or zero, because if one can serve everybody else by 17 telecopier but Southampton has to be served by Federal 18 Express, then if all three intervenors are preparing a 19 coordinated response, Suffolk County and New York State ,
20 receive the document in effect on day zero and Southampton 21 receives it on day one, but the clock doesn't start running 22 until day two.
I 23 That may sound like a relatively minor problem, 24 but it can be more than minor at times and it also leads to 25 confusion.
ACE-FEDERAL REPORTERS, INC.
202-347 3No Nationwide Coserage WA33M646
,_ .- . - . - _ . . _ _ . _ _ _ . _ . _ _ _ _ _ _ _ _ . _ . - . . _ . . _ _ . _ , _ _ . . _ _ _ . _ _ . . _ . . . . ~ . . . - _ . . - . . _ _ _ . . _ _
L ~ ,O
\_/ 11400101 13 marysimons 1 The fact of the matter is that everybody has good 2 telecopiers and there is no reason not to use them at least 3 as far as I can tell.
4 MS. LETSCHE: Judge, if I might just respond. I 5 think that in terms of using telecopiers, we have used them i 6 and it makes sense to use them in certain circumstances when 7 you have small documents, and we do that regularly with 8 Hunton and Williams and with the other parties.
i 9 You have a problem if you are talking about doing 10 it all the time. You cannot, at least our our law firm, and 11 we have a big law firm and lots of people in that firm need
(} 12 to use telecopiers and you can't tie up a telecopier machine 13 to transmit a 30 or 40-page document on a regular basis, and 14 as you well know, a lot of long pieces of paper go back and 15 forth in this proceeding.
26 So I think a rule of reason needs to be applied 17 here, and I think in the past the parties have come to grips l 18 with that and have used it when it makes sense to use it and
! 19 otherwise, yes, you lose a day because you put it in Federal l
20 Express. You know, the rules deal with that and I think the 21 difference of a day is not a big deal and the rules take 22 care of that.
l 23 It is also very expensive to use the telecopier l
24 machines and again when you are talking about very large 25 documents or Jots of documents. It just doesn't make sense ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 800-336-6M6
~
i 11400101 14 marysimons 1 to have that as some k3rA of a requirement I don't think.
2 JUDGE FRYE: Would it help you if you had two 3 days the way they have two days?
4 MR. IRWIN: It would help us in terms of equity.
5 It doesn't help the process because it builds in delay.
6 Obviously there is a balance.
i
! 7 JUDGE FRYE: Has the question of consolidation 8 ever been taken up in this proceeding?
9 MR. IRWIN: Not formally, Judge Frye, although it 10 is something which I think we will approach quite rapidly.
! 11 There occurred a designation of a witness last night on
() 12 behalf of one of the intervenors solely, which is 13 inexplicable to me in any except tactical terms. The 14 witness is Frank Petrone, the former Director of Region II, 15 who is apparently going to be sponsored by New York State
- 16 -alone.
l 17 His testimony, it seems to me, is perhaps the f 18 most narrative of that of the intervenors if any possible i
19 witness. I can't understand the reason for it.
l 20 Plus, as Judge Shon will recall from the last 21 stages of the proceeding involving certain difficulties with 22 cross-examination and enforcement, what we came to call tag i
23 team questioning, plus the fact that virtually all documents l
l 24 are as a practical matter prepared by and in the offices of ,
( 25 counsel for Suffolk County, have led LILCO to conclude that 1
ACE-FEDERAL REPORTERS, INC.
l 202-347-3700 Nationuide Coserage 800-336-6 4 6
E j
( 11400101 15 marysimons 1 we should very seriously consider a request for 2 consolidation formally and more than as a matter of casual 1
3 accommodation, and we will probably be filing papers to that 4 effect with the Board.
5 JUDGE FRYE: I think that is probably the way to
- 6 get at these problems.
1 j 7 MR. BORDENICK: Judge Frye, prior to Mr. Irwin's
- 8 introduction of the matter of Mr. Petrone's designation as a 9 witness for the State, I wanted to make some observations to 10 matters relating prior to that.
11 First of all, in connection with LILCO's motion
() 12 respecting service and notification procedures, which was a 13 part of their response to the intervenors' notion for the 14 Licensing Board to follow the rules of practice in ruling on i 15 motions which was filed on November 24th, 1986, I think the
, 16 Board in part has responded to that motion in having Mr.
17 Whezstine pursue this electronic filing matter, and I think 18 that is a good first step.
i 19 Obviously the staff endorses any procedures that 20 will expedite and facilitate filings and such matters in 21 this proceeding.
22 In connection with filings, and it has been 23 alluded to by both Mr. Irwin and Ms. Letsche, and this is a 24 question of the attorney for the Town of Southampton who, 25 unfortunately, is not here today, that he is without a ACE-FEDERAL REPORTERS, INC.
g 202-347-3700 Nationwide C<nerage 80tk336-6646
11400101 16 marysimons 1 telecopier. To my knowledge, no one has'either inquired or 2 him or of the County.
3 I understand that he doesn't have a telecopier in 4 his office and I understand of course is without authority 5 to order him to get a telecopier, but I know from personal 6 experience just by way of example that the County has a 7 Iarge complex out in Riverhead, downtown Riverhead so-8 called, where Mr. Latham's office is located.
9 It has never been explained to me, and I guess 10 one reason it hasn't been explained is that I haven't 11 inquired, as to why things can't be telecopied to Mr. Latham
() 12 in Riverhead in care of the County. I think that is by way 13 of example something that needs to be explored.
14 Again, for reasons of his own choosing, Mr.
15 Latham is not here today, and I don't know that we can 16 explore it with him, but certainly the County is here. I 17 think that sort of thing is illustrative of expedition and l 18 facilitation.
19 I know the County in the past has worked with the j 20 other intervenors and the other parties in that regard, and 21 I don't quite understand why that sort of thing couldn't be 22 explored further here.
l l 23 One other observation on the Chairman's 24 suggestion on insignificant matters such as requests for a 25 one or two-day extension of time. It is at least the l
i ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nanonwide Cmerage 800-336-6M6
. - , . -,-. , - - - - . _ . - _ . . _ . . . . _ _ _ _ _ - . . . . . _ _ _ . . _ . _ . _ . . _ . ~ . - , . . , . - - -__
11400101 17 marysimons i i staff's practice, and I don't remember the case it was in, 2 but I think it is required by the Appeal Board, and we 3 follow it in cases of both the Appeal Board and a Licensing 4 Board where we seek a short extension of time or any 5 extension of time, particularly a short extension of time, 6 we always try to contact the parties and put something in 7 our motion that says in effect if the staff were moving for 8 say a two-day extension that we have contacted counsel for 9 the applicant and if he has no objection we have contacted 10 counsel for intervenor "X" and he has not objection, or he 11 has an objection and he will be making a filing shortly 12 explicating his objection and that sort of thing.
( ).
13 So that is another route to go and I'm not 14 suggesting that as a substitute to calling the Board, but
! 15 rather putting the burden on telephoning or the Board i
- 16 receiving all these telephone calls, the parties can l
l 17 certainly, as I indicated, follow what is the staff's
! 18 practice and contact the other parties on their own motion l
19 and so state in the motion that they're filing as to what j
20 the other p, arty's position is.
21 JUDGE FRYE: That is a very good suggestion and i
22 why don't we do that as a general rule.
23 MR. LANPHER: The Board's comment is in l
24 connection with extensions of time motions?
25 JUDGE FRYE: Yes.
1 ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 8M336-6M6 l
11400101 18 marysimons 1 MR. BORDENICK: I don't know if the Board wants 2 to pursue this matter of Mr. Latham, i
3 JUDGE FRYE: Yes, I did want to inquire about the
'4 matter of the telecopier if one exists.
5 MR. LANPHER: Judge, I happen to be personally 6 familiar with the telecopier capabilities of the County 7 Executive's office in Riverhead. Unless things have changed 8 since I was last there, the machine that is there is not 9 automatic. It is kept on a shelf with a considerable amount 10 of dust on it usually because it is not used on any regular 11 basis, and it is a very unreliable machine. It is not like,
() 12 frankly, the modern machines that we have in our office, and 13 it requires the presence of an operator for every single 14 page that goes through, and it is a six-minute per page 4
! 15 machine.
16 I can inquire further, but based on what 1 know 1
17 right now, it is absolutely impossible, and Mr. Latham's i 18 office is a couple of miles away and that office has other 19 responsibilities obviously, too. I don't know if it even l
l 20 could be arranged even if it were a good machine. My
! 21 understanding is that it is a machine that no one would want 22 to rely upon.
23 JUDGE FRYE: Well, if you would inquire and find 24 out if that is true. There is no point in getting back to 25 us further if that turns out to be the case. If it should ACE-FEDERAL REPORTERS, INC.
202-347 3700 Nationwide Coverage 800-336-6M6
I 11400101 19 marysimons 1 turn out that they have more modern facilities, we would 2 like to know.
3 MR. LANPHER: I will inquire.
4 MR. BORDENICK: Judge Frye, as an additional 5 alternative, and I don't want to spend a lot of time on this 6 particular point, and I'm not even sure that such a thing 7 exists, but it might be worth while looking into commercial 8 telecopy facilities.
9 Again, I'm really just trying to explore in line 10 with what all the parties seem to be interested in and what 11 the Board seems to be interested in as to expedite and
(} 12 facilitate service, and I think every potentia 2 avenue ought 13 to be explored, including, for example, a commercial l
14 service.
15 JUDGE FRYE: Good. I agree.
16 The next item I wanted to take up with you is the t
17 question of which contentions were admitted and which I
18 contentions were not admitted in the October 3rd prehearing 19 conference order. We've got the revised standard version, 20 we've got what I will call the Kirkpatrick and Lockhart 21 version and we have the cut and paste version. ,
22 This is the version that the Board has come up 23 with, and this basically took the Kirkpatrick and Lockhart 24 statement of the contentions and where one was said to be
( 25 incorporated or subsumed in another, it was cut out and put ACE-FEDERAL REPORTERS, INC.
202-34#-3700 Nationwide Coserage 800-33W
. - - . _ . . . - _ , , _ . . --- . . , _ . ~ _ . . . - _ _ _ _ _ - - - - _ - - - _ - - _-- _ _ _ _ _ _ _ _ .
. _. __. _ m .
11400101 20 marysimons 1 with the other.
2 Now this represents the Board's view of what was 3 admitted in the October 3rd prehearing conference. I have 4 copies for all the parties. Since you do not use IBM word 5 processing equipment, I wanted to ask Kirkpatrick and 6 Lockhart if they wouldn't take this and put this in the 7 version of a final document.
8 I did not separately compile the contentions that 9 were not admitted, but certainly the Board has not objection 10 if you want to do so so that you will have a record of them 11 and serve those on the other parties as well.
r.
() 12 MR. LANPHER: We would propose the way did in 13 what you called the Kirkpatrick version, those that weren't 14 admitted to leave them in with the bracket notation at the f 15 front of ---
16 JUDGE FRYE: I would prefer that you didn't do l
l 17 that, and I'll tell you why. I want to have a document that 18 everyone can refer to when we get to hearing and it won't be 1
19 cluttered with contentions that are not in the proceeding l .
l 20 MR. LANPHER: We'll put them in the end as an l
l l
21 appendix.
22 JUDGE FRYE: If you could put them as an i 23 appendix, that would be fine.
24 MR. LANPHER: Okay.
25 JUDGE FRYE: And of course you will have your ACE-FEDERAL REPORTERS, INC.
l 202-347-370) Nationwide Coserage h 3364 M6 e t
1 l
l
( l11400101 21 marysimons 1 version as it was filed originally.
2 MR. LANPHER: We will take that and as 3 expeditiously as possible put together what appears to be 4 the right kind of version and probably circulate it around 5 just among the parties first so that everyone can look at it 6 and you can make-sure ---
7 JUDGE FRYE: I have copies for all the parties of 8 this. Now there is, I will have to add, on the first page, 9 let me say, which begins with Contention 15, I consolidated 10 Contentions 15 and 16, and that required that I write in 11 some language in the beginning of Contention 15 which would
(} 12 also reflect the matters alleged in Contention 16. That is 13 not legible. I'll have to get that language for you so that 14 -you will able to ---
15 MR. LANPHER: If you would have your secretary 16 just call my secretary ---
17 JUDGE FRYE: I think that rather than do that, we 18 will take a short break at some point and I'll bring it up 19 and read into the record and everybody will have it at the 20 same time.
21 So these are here if you all want to come and get 22 them.
23 (Pause while the parties received the document 24 referred to above.)
25 I also want to emphasize that this version does ACE-FEDERAL REPORTERS, INC. .
x.m.mm ~ _ m c _ ,.
l
11400101 22 marysimons 1 not take into account any of the objections or motions for 2 reconsideration that have been filed. This does not look at 3 that at all. We will be ruling on that separately, and we 4 will also when we do that, we will indicate why we have come 5 up with the version that we have come up with here.
6 MR. IRWIN: Judge Frye, just so I understand what 7 you have just said, does this represent a secretarial job or 8 does it involve the bottom line of the Board's rulings on 9 ! various motions to reconsider objections as well? In other 10 words, is this the Board's final product and to add only 11 explication remains or are the motions still pending?
() 12 JUDGE FRYE: The first thing we did, to try to 13 answer your inquiry, the first thing we did was to try to 14 put together in one place all of the contentions dealing 15 with a particular subject, and we did that as I indicated by 16 simply cutting and pasting.
17 We reviewed that to see whether we thought it 18 compelled with what was stated in the prehearing conference 19 order, and we have decided that we think it does with a 20 couple of minor changes over what was submitted. So this is 21 our belief as to what was admitted by the prehearing 22 conference order.
23 Now we have not considered the FEMA motion for 24 reconsideration or the County's objections. So that will be
( 25 considered in the context of this version.
l ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coscrage 800-33MM6
11400101 23 marysimono 1 MR. LANPHER: Judge, if I could inquire. With 2 that clarification, we are happy to take this, since it's on 3 our word processor, turn it around and all that. But, 4 frankly, isn't there going to be then, assuming that 5 something gets changed, and we're assuming that you are ,
6 going to grant all our objections and I'm sure LILCO and 7 FEMA are thinking some other things, maybe we should wait to 8 turn this around until you come out with your rulings on 9 those things. If you want this right away, we'll do it 10 right way, but dees it make sure to wait until we get 11 everything?
12 JUDGE FRYE: I think it would be helpful to have 13 it before we rule. I think, as you will see, it's a 14 clerical task.
15 MR. LANPHER: I will let you know when we think 16 we will have it ready for you. We'll go back and look at it 17 later today and put people to work on it.
18 JUDGE FRYE: Okay. Now let me, while we are on 19 this subject, give you a little explanation. If you go to l
l 20 page 2 you will note at the top there is a number that is l
l 21 circled in most of these, and I see on the second page it
! 22 apparently didn't come out on the copy.
23 The number that is circled at the top is a 24 consecutive numbering system that was adopted for this. The 25 page numbers on the Kirkpatrick and Lockhart veroion have l
ACE-FEDERAL REPORTERS, INC.
I- . !""T" _
l'"~ ~ ~' L ~? ~
11400101 24 marysimons 1 been preserved on the bottom. Where something came off the 2 top of a page, you will see if you look on the second page, 3 page 17. That meant that came from page 17 of the 4 Kirkpatrick and Lockhart version.
5 MR. LANPHER: Judge, just so I understand what 6 you want, go to the very first page, page 1 in your 7 consecutive numbering. We had inserted various bracketed 8 material there. Do you want that bracketed material left in 9 as well as your handwritten notation?
10 JUDGE FRYE: I think so, yes.
I 11 MR. LANPHER: Okay, fine. And the stuff you're
() 12 going.to read to us is the stuff that is on page one that we 13 can't read?
, 14 JUDGE FRYE: That's right, that is illegible.
. 15 MR. LANPHER: Fine.
16 JUDGE FRYE: I think I can give that to you right 17 now. Beginning with County contention 15, come down to 18 line 7, the middle of the line, it would say: "In that it i
19 did not include demonstrations or evaluations of major 20 portions of the LILCO plan -- and then we insert -- and the 21 emergency response capabilities of many persons and entities l
22 relied upon to implement the LILCO plan. The data set forth l 23 in subparts A-I,K and M of Contention EX-15 and A-L and N of n 24 Contention EX-16 individually and collectively establish
( 25 that the exercise demonstrated," et cetera.
1
\
l t
I
< ACE-FEDERAL REPORTERS, INC.
202-347 3Nx) Nationwide Coserage 800-336-6646
11400101 25 marysimons 1 If you have problems in setting it up, if your 2 person working your word processor has problemo have them 3 call my secretary.
4 I will also say we have got some more copies if 5 anybody wants them.
6 Now the next thing I wanted to take up with you 7 is I wanted to simply go through the list of pending 8 matters, which the Board's plate is pretty full right now, 9 and I want to be sure we've got everything under control.
10 We have the letter request of the intervenors to 11 extend the discovery period of the 1st and the supplemental
(} 12 letter of the 3rd, and we will get to that point later on 13 this morning.
14 We have the intervenors' motion to follow the 15 rules, a response by LILCO which suggests certain procedures 16 to be followed and intervenors' response to that which we 17 have talked about somewhat this morning already.
18 We have LILCO's motion for expedited 19 reconsideration of the discovery order directed to FEMA and 20 the staff's motion for clarification of the order directed 21 to FEMA.
22 We have also the question of what contentions 23 were admitted by the prehearing conference order which we 24 have already talked about.
( 75 We have the FEMA motion for reconsideration of ACE-FEDERAL REPORTERS, INC.
202-347-3700 Naionwide Coserage 80Lk336-6M6
- , , _ - _ _ , _ . ~ . , . - . - , . . . . - _ . . - . - . _ - . , - - . . _ . - . . . - - -
o
- b -11400101 26 marysimons 1 the prehearing conference order and we have the intervenors' 2 objections to the prehearing conference order.
3 We have intervenors' motion to compel FEMA to 4 produce witnesses for deposition, permit responses to 5 questions and to produce documents, which is fully briefed 6 now I think.
7 We have intervenor's motion to compel LILCO to 8 answer the first set of interrogatories and request for 9 production of documents and LILCO's motion for a protective 10 order with regard to that, and that, if I'm not mistaken, is 11 also fully brjefad.
() 12 We have LILCO's motion to compel New York State 13 to answer the first set of interrogatories and request for 14 production, and that has not yet been answered nor do I 15 believe the time has yet run for an answer to that.
( 16 Mr. Irwin, you indicated in your letter that you l
l 17 might be filing some more motions.
I j 18 MR. IRWIN: That's correct, Judge Frye. We were l 19 unable to get a motion to compel intervenors to answer the i
20 second set of interrogatories finished by this nn- ling. I i
1 21 expect that it will be finished by the close of businese l
22 today, and my hope is that it will be filed and then i
23 delivered by telecopier or hand before five o' clock with
! 24 everybody today.
25 JUDGE FRYE: Did I leave out anyone else's l
l l ACE-FEDERAL REPORTERS, INC.
I 202-347 3700 Nationwide Coverage m n 336-N>*6
r~:
. (-) 11400101 27 marysimons 1 motion?
2 MR. IRWIN: Judge Frye, LILCO on the 2nd a motion;_
4 3 for a protective order with respect to its witnesses' scope 4 of testimony in forthcoming depositions.
S' -JUDGE FRYE: That was attached to your letter we 6 received yesterday.
7 MR. IRWIN: I believe that may be correct. I 8 didn't hear that motion mentioned.
9 JUDGE FRYE: You didn't hear it; that's right. I 10 neglected to mention it. It's your letter of the 2nd, and I i
l, 11 have behind that LILCO's motion for a protective order
() 12 governing intervenors' questioning of witnesses and requests 13 for an sxpedited Board ruling dated the 2nd of December.
( 14 MR. IRWIN: That's correct.
I 15 JUDGE FRYE: Okay. So we have responses to that l
16 yet to come.
l l 17 Anything else that might have been left out?
I 18 (No response.)
l 19 Now where do we stand on discovery, aside from l'
l 20 the matters to which objections have been lodged, is l
l 21 discovery pretty well complete at this point?
l l 22 MS. LETSCHE: Judge Frye, the answer is no, and I l
23 think I laid out at least the outlines of the difficulties
! 24 that have been presented in my letter of December and it was
( 25 ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 800-3MM6
_ , - , . . - , . ~ . - . , , _ _ , _ . _ _ . _ _ _ _ _ _ . , , , _ ~ _ . , . , _ . _ _ _ . _ _ _ _ .
. O(_/11400101 28 marysimons 1 followed up with Mr. Miller's letter of December 3, 2 yesterday.
3 JUDGE FRYE: Those I'm treating basically as 4 objections or as discovery problems.
5 MS. LETSCHE: That's right, but in terms of the 6 status of discovery, let me just fill you in on where we 7 are.
8 Obviously there has been a lot of paper discovery 9 that has been going on and has been responded to or objected 10 to, and you have all those things that you've just listed in 11 front of you right now to deal with.
() 12 In terms of depositions, though, let me just giva 13 you the status of that.
14 Basically we let you know what was happening in 15 the attachment to our motion to compel, which had a calendar 16 of November and December, and that reflected the depositions 17 that had been scheduled to date during the period prior to 18 the December 19th cut-off of discovery.
19 There are basically 10 business days left, and 20 I'm not counting today, and I'm also not counting tomorrow 21 because we had to postpone the depositions schedule for 22 tomorrow as stated in Mr. Miller's letter. So there are 10 23 days left, two full weeks.
24 During those 10 days there are eight depositions O
\-- 25 of LILCO witnesses scheduled for next week, the week of the ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage M4336-6646
O)
(_ 11400101 29 marysimons 1 8th, there are eight Suffolk witnesses scheduled to be 2 deposed on the week of the 18th, and a New York State 3 witness has been noticed for that week, although the 4 scheduling is still being discussed since he has to be 5 checked in terms of his availability, and I spoke this 6 morning to counsel for LILCO about scheduling an additional 7 Suffolk County witness that week.
8 So potentially you have, it looks like you are 9 going to have 18 depositions taking place between now and 10 the end of the discovery period.
11 Now, in addition, we have completed two
(} 12 depositions, one of a County witness and one of a LILCO 13 witness this past week. We have taken seven FEMA 14 depositions. Six of them were FEMA evaluators and one of 15 them was a FEMA witness. All seven of those depositions 16 were adjourned uncompleted for the reasons set forth in my 1 17 letter and Mr. Miller's letter.
18 The one of the witness was adjourned because he i
19 was not permitted to discuss any of his anticipated l
l t
20 testimony, and the other witnesses were adjourned because l
l 21 they were not able to recall without referring to + heir i 22 evaluator critique forms what it was that they observed 23 during the exercise, and those documents have not yet been 24 reviewed by Mr. Cumming and he has not decided whether or 25 not he's going to produce them.
ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coverage 800-336-6M6 i
q s/ 11400101 30 marysimons i In addition, there are nine FEMA witnesses and 2 evaluators whose depositions.have been noticed that FEMA has 3 refused to produce, and among that nine are the two 4 witnesses whose depoettions we postponed since it was 5 indicated that they would not be permitted to discuss their 6 testimony.
7 Now wo also have recently identified four 8 additional Suffolk County witnesses who we assume LILCO will 9 want to depose. LILCO has indicated that they intend to 10 designate additional witnesses on the order of five or so.
11 That has not been done yet, and the governments are
() 12 anticipating on the order of three to six additional 13 witnesses.
14 So the bottom line just in terms of numbers if we 15 have 18 witnesses scheduled for depositions in the next two 16 weeks. There are 13 by my count witnesses whose depr' ans 17 have been noticed or who have been identified as witnesses 18 who are not yet ccheduled for deposition. There are seven 19 FEMA depositions that have been adjourned, at least some of 20 which are likely to have to be reconvened, and there are 21 eight to ten likely additional witnesses to be desiganced in 22 future by the governments and LILCO. So you are talking 23 between 20 and 30 additional depositions that have not yct 24 been scheduled.
O(,/ 25 It seems clear in looking at the calendar ACE-FEDERAL REPORTERS, INC.
202 347-3700 Nationwide Coserage 8 % 336-6646
(h s_) 11400101 31 marysimons 1 that there are a lot of additional depositions that just 2 physically can't be taken within the next two weeks. That 3 was the point of our letter and that is sort of the status 4 of discovery right now.
5 JUDGE FRYE: And those are depositions basically 6 about which no problems have ye: been raised?
7 MS. LETSCHE: Well, other than the ones that have 8 been previewed in the motion to compel that we filed which 9 covered ---
10 JUDGE FRYE: That are housed in LILCO's motion 11 for a protective order?
(} 12 MS. LETSCHE: That would relate to next week's 13 depositions I assume.
14 JUDGE FRYE: Now does that comport with your 15 view, Mr. Irwin, of what needs to be done still?
16 MR. IRWIN: Well, that's a partial view, Judge 17 Frye. I think that there are clearly problems with 18 discovery in this case. One of them is that I think it's 19 something that has gotten a little bit out of hand.
20 We had a 10-hour exercise and there has already 21 been as much discovery on this one 10-hour exercise as there 22 was in the entire emergency planning litigation which lasted i
i 23 eight months, and we are scarcely half way through with 24 intervenor's intended deposition march.
25 We just received last night and this morning the I
l l ACE-FEDERAL REPORTERS, INC.
202-347-37(0 Nationwide Coserage 8m336-6M6
11400101 32 marysimons 1 designation of five new witnesses by intervenors. One of 2 them, Mr. Petrone, absolutely astounds me coming at this 3 date. I understand Ms. Letsche to be indicating that they 4 expected to designate three to six additional witnesses.
5 Perhaps there is a reason given the fact that the 6 exercise nine to ten months ago and documents were largely 7 turned over five to six months ago but they could not have 8 been designated until this week, but I haven't heard it yet, 9 and I think we are going to be suggesting something to the 10 Board with respect to the propriety of designating this many 11 expert witnesses this late in the process which has been
() 12 underway for half a year.
13 If one takes the intervenors' desires at face 14 value, yes, there are very serious problems with discovery, d
15 and they are, in my view, utterly inconsistent with the 16 notion that the Commission put out in CLI-86-11 now five 17 months ago with respect to an expedited proceeding.
18 In short, I think there are real discovery 19 problems, one of which I've just alluded to.
20 Another one, though, is just something that only 21 the Board can lance, and that is what the scope of the 22 proceeding is going to be. My only observation on that is 23 to plead with you all to make a judgment on that as quickly
! 24 as you can because Mr. Cumming feels, I understand, that his 25 ability to protect his witnesses' interests would be ACE-FEDERAL REPORTERS, INC.
202 Nationwide Coserage 80433MM6
-347-3700- , . _ . _ ,
O)
(_ 11400101 33 marysimons 1 prejudiced by discovery which goes outside the scope of 2 contentions which ultimately prove admissible.
3 We feel similarly, and that is part of the reason 4 we filed the protective order request that we did with 5 respect to our witnesses.
6 Only a ruling from the Board can clarify those 7 things. Obviously the scope of the ruling will affect the 8 amount of discovery remaining.
9 Let me just add one thing about the depositions 10 that remain. Obviously a larger set of proposals is being 11 put on the table this morning than I had imagined as of 6
() 12 o' clock last night to be the case. But I still have in my 13 mind that the number of witnesses who were designated as of 14 5 o' clock or so yesterday could have been accommodated by 15 December 19th if everybody is willing to work hard.
1 j 16 Kirkpatrick and Lockhart is a big law firm with a i
17 lot of lawyers and Hunton and Williams is a big law firm l 18 with a lot of lawyers and the NRC staff has got a lot of l
19 lawyers. Bill Cumming can't be everywhere at all times, but l
20 not all the witnesses are his. We have taken more than one l 21 deposition on any given day before and I think we should be I
22 prepared to do it again.
23 December 19th is not just a Friday. It is a very 24 important Friday in the structure of a year. You miss
( 25 December 19th and you basically start losing two to three l
l ACE-FEDERAL REPORTERS, INC.
202 347 37oin saiionwide coserage soo-33wu6 l -- ._. -
(^T x/ 11400101 34 marysimons 1 weeks almost automatically because of people going off on 2 Christmas.
3 So I think we should be very careful in deciding 4 to retreat from that as a discovery cutoff date as 5 intervenors are proposing.
6 Now LILCO is about to file a motion to compel 7 discovery on various interrogatories which were answered 8 insufficiently by Suffolk County. It is important that we 9 get this to the Board quickly and it is important that the 10 Board rule on that as quickly as possible so that if I
L 11 possible we can get information which will then be available
{
() 12 13 to us in our depositions which are mostly during the week of the 15th to the 19th.
14 We have filed a request to compel discovery of 15 New York State and it is important that we get a ruling on 16 that. New York State refused to answer any of our 17 interrogatories. We did ask the Board to ask New York State 18 to expedite its answer to them, the reason being that we are 19 being to some extent stymied in our ability to undertake 20 discovery by what I consider frankly stonewalling tactics.
21 So I think we have problems. We are prepared to 22 work very hard to overcome them, and I'm glad to hear the 23 intervenors indicate that they don't have substantial 24 remaining document production problems except as reJates to
) 25 the scope of the proceeding as the Board may ultimately ACE-FEDERAL REPORTERS, INC.
202 347-3700 Nationwide Coserage 8633M646 l
( 11400101 35 marysimons 1 determine because I think all of the documents are out.
2 It's just simply the number of depositions and I am frankly 3 interested at this point in finding out who so many 4 witnesses who had have to been thought about some time 5 before are suddenly crawling out of the woodwork this late 6 in a process that has been going on for a long time.
7 JUDGE FRYE: Mr. Cumming, do you want to comment?
8 MR. CUMMING: Yes, Your Honor, I do.
9 You'll have to excuse me for leaving the table 10 occasionally. I'm used to dealing with judges face to face.
11 In the letter from Kirkpatrick and Lockhart of
(} 12 December let they enclose my supplemental response in 13 response to your motion of November 19th, and we have 14 supplemented informally by hand service on all individuals a 15 memorandum which I would now, and unfortunately I do not 16 have an e:ctra copy for the reporter, serve on the Board 17 which supplements our Interrogatory No. 9.
18 I think that this supplements highlights a l
19 problem which we have, and that is that FEMA prior to this 20 proceeding has never produced non-designated hearing 21 witnesses for discovery purposes.
22 MR. MILLER: Excuse, Mr. Cumming, I hate to 23 interrupt you, but have you served this on the other 24 parties?
25 MR. CUMMING: Yes, I have. You received it at ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Cos erage 800-33MM
. - ~ .... .- .-
11400101 36 marysimons 1 the depositions the other day.
2 Let me tell you what the document is for the 3 purpose of the reporter. It is a March 20th, 1986 i 4 memorandum from Ed Kansman to M. Henabury listing 5 participants in the drill and it was given to your counsel.
6 In fact, I believe it was either you or Ms. Letsche, t 7 Well, it was handed out in the deposition, but 8 I'll be glad to returnish it to the parties.
9 My point is this, and we have asked NRC to make a 10 representation on this, the question is whether these people i 11 are being deposed as fact witnesses or expert witnesses. It
(} 12 makes a difference. We have tried to the extent possible to 13 make witnesses noticed who are non-designated hearing li witnesses available, and we have done so and they have been 15 deposed.
i 16 We do have some objections with respect to the 17 scope of their testimony. Pre-exercise we basically argue 18 is not relevant. However, we have allowed, and I think if 19 you review the depositions, fairly full testimony with l
{ 20 respect to pre-exercise.
l 21 Also, we have allowed almost completely full l
22 testimony with respect to the day of the exercise, and it is i 23 only the post-exercise deliberative process that we have l
l 24 objected to questioning, but we have authorized the
( ) 25 witnesses in many cases, and I believe in most cases to i
i l ACE-FEDERAL REPORTERS, INC.
202-347-3A10 Nationside Coserage 800-336-6M6
11400101 37 marysimons 1 ar.swer to the best of their knowledge or belief.
2 We would like to have from NRC a statement with 3 respect to whether in this proceeding anyone who attended 4 the day of the exercise in any capacity is in fact going to 5 be deposed by any party because it clearly is a burden on 6 FEMA to produce these people. We would represent that it is 7 in the Board's interest and the parties' interest and it 6 certainly is in our interest and we so request that we 9 determine exactly what the ultimate scope of providing 10 witnesses for the hearing is, and we have no objection to 11 having those witnesses, those designated be fu31y deposed 12 prior to the hearing.
}
13 In fact, I have a suggestion to make on that 14 standpoint, but I would first like to have NRC make a 15 representation as to its understanding of what has occurred 16 with respect to the deposition of witnesses or witnesses 17 which may be deposed in the future.
18 JUDGE FRYE: Are you referring that request to 19 Mr. Bordenick?
I 20 MR. CUMMING: I'm referring it to Mr. Reis which
(
l 21 whom I had the discussion yesterday.
! 22 MR. REIS: your Honor, I can't speak. I have 1
23 laryngitis.
I
! 24 JUDGE FRYE: Oh, I'm sorry. That may be
) 25 fortunate, Mr. Reis. You never know.
l l
l l
ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage RXk33M64
11400101 38 marysimons 1 (Laughter.)
2 MR. BORDENICK: Judge Frye, I think what Mr.
3 Cumming has raised ties in with a matter that I was going to 4 raise in response to Mr. Irwin's comments.
5 My observation as to what is going on here, and 6 again this ties-in with the principal purpose, as I 7 understand it, of our being here today, which is the 8 County's letter of December 1st which seeks, as amended by 9 Mr. Miller's letter of the 2nd or the 3rd, which seeks to 10 extend the discovery time. If you pile enough snow on the 11 roof, it's going to collapse.
(} 12 13 I think, for example, first of all, the Board ought to seriously consider setting a cut-off date for the 14 designation of witnesses. If you keep adding witnesses, if 15 the County adds a witness then LILCO wants to depose the 16 witness and vice versa. So that in and of itself, if you 17 wait until the 18th to designate a witness, is going to 18 extend the discovery time.
19 As to Mr. Cumming's remarks, I think he is l
20 entitled to designate who he wants to designato as a l
l 21 Nitness, which he has done in response to his answers to the 22 County's interrogatories. Beyond that, the only thing I can 23 refer the Board to is the staff's motion for clarification l 24 as regards the memorandum of understanding, which is of 25 course not a regulation, but it is a statement of Commission i
L ACE-FEDERAL REPORTERS, INC.
202-347-3 NN) Nationwide roserage ExL336-646 l
11400101 39 marysimons 1 policy which is binding on the staff and by implication on 2 the Board also.
3 I think I agree with a lot of what Mr. Irwin 4 said. There are a lot of things pending and I think it 5 would be helpful to Mr. Cumming if he knew precisely which 6 contentions.
7 One of the disputes between FEMA and the County, 8 as I have observed, is asking questions on contentions 9 where, for example, Mr. Cumming has asked the Board to 10 reconsider its decisions admitting the contention.
11 So I think a lot of the problems that the Board
(} 12 is facing or that the parties are facing vis-a-vis discovery 13 would be I think resolved if the parties had a clear 14 understanding of what it was that was going to be litigated.
15 I can't speak for FEMA's resources, they have 16 their own counsel here, but I do think again, as Mr. Irwin 17 has aptly pointed out, the parties have spent a lot of time 18 and resources on really a 10-hour exercise and I haven't 19 measured the paper, but he said that we had done more 20 discovery on this one-day exercise that we did on the whole 21 eight-month emergency planning litigation. I don't know 22 whether that is true or not, but it certainly wouldn't 23 surprise me if it were true.
24 JUDGE FRYE: Let me come back to Mr. Cumming for
( 25 a minute.
ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coverage 8(n3 3(>fM6
l I 11400101 40 marysimons 1 Mr. Cumming, I would like to explore with you 2 just briefly why it is your witnesses aren't allowed to j 3 testify as to their testimony or the admitted contentions as 4 they understand it?
5 MR. CUMMING: Your Honor, in brief FEMA as of 6 this date is not certain what the scope of this litigation 7 is. We are in fact willing, as I just represented, to allow 8 all our designated hearing witnesses be deposed as a panel 9 prior to the hearing if in fact there is no modification of 10 the October 3rd order and it can arranged. We will in fact 11 provide that panel to all parties to depose them.
i
(} 12 There is a peculiarity in that even in the 13 October 3rd order the discuss occurs with respect to 14 Revisions of 7 and 8 of the LILCO plan which is currently 15 being reviewed by many of the same key individuals that in 16 fact are designated as hearing individuals, particularly 17 Messrs. Keller and Baldwin of the Argonne National 18 Laboratory.
l 19 FEMA does not understand, pursuant to the Board's 20 October 3rd order how Revisions 7 and 8 will be integrated l
21 into this proceeding. However, we have been asked by NRC to i' 22 review Revisions 7 and 8, and we have obligated ourselves to 23 I do so by December 15th.
24 I must state, however, as counsel for FEMA, that 25 in my judgment there is likely to be a slippage of a number ACE-FEDERAL REPORTERS, INC.
202 347 37(o Nationwi& Cmerage 8(633MM6
11400101 41 marysimons 1 of days on the December 15th date. Our people have 2 represented to me that'they intend that there be no 3 slippage, but my judgment is to call counsel at this time 4 that there will be a slippage of several days on that
- 5 report.
6 It is made available to the public simultaneously 7 with its transmission to the Nuclear Regulatory Commission.
8 It's a lengthy report, as I understand it, at this stage.
9 It is approximately 100 pages, including text and exhibits, i
10 I'm not privy to the information, nor is anyone f
- 11 else, except the RAC members who are reviewing it, and that
() 12 13 in fact caused us a great deal of problem because we are
, giving priority to the review of 7 and 8 at this point.
14 JUDGE FRYE: Okay. Let me ask you another
+ 15 questions while we are talking. The scope of the hearing 16 has been alluded to several times this morning. I'm not l 17 sure I fully understand FEMA's position as stated in the 18 motion for reconsideration with regard to the implications 19 for FEMA of the Board's admitting contentions which go to 20 the scenario or scope of the exercise that was conducted.
l 21 Now let me give you a little more background on 22 that. There is in the regulations, as you know, which gives 23 some definition of what a full-participation exercise is, 24 and it is the Board's preliminary view that the question oi
( 25 whether a particular exercise is a full-participation ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationmide Coserage 80lb346646
. . , . ~ _ _ . _ . . . . . . . , _ _, . . _ _ _ _ _ _ _ _ . . _ _ . _ _ . . _ _ . _ . _ . - _ . _ , . , . _ _ . - _ - .
O V 11400101 42 marysimons 1 exercise is something that is legitimately challengeable if 2 in fact the exercise in question here is purported to be a 3 full-participation exercise.
4 Similarly, if the exercise is not supposed to be 5 a full-participation exercise, it would seem that there 6 would be little point in exploring the scope of it.
7 Now I would like to get your reaction to that in 8 the context of your concerns for FEMA of a review of the 9 scope of the exercise.
10 MR. CUMMING: Essentially FEMA is not I 11 knowledgeable nor can it reach a conclusion with respect to
(} 12 what this exercise was under NRC regulations.
13 JUDGE FRYE: I understand. I have seen your 14 answer to the request for admission and I appreciate the 15 point that you can't say what is what. But I am interested 16 in your concerns.
17 MR. CUMMING: In our judgment, the scenario 18 development and the scope of the exercise are not relevant 19 to what occurred the day of the exercise. The day of the 20 exercise is in fact the event which in FEMA's judgment must 21 be reviewed with respect to any finding and determinations 22 issued with respect to the post-exercise assessment report 23 that it did in this case or it does in any other case. It's 24 a relevancy matter as much as anything else.
m
(_) 25 It also is generic, as was argued earlier in the ACE-FEDERAE REPORTERS, INC.
202 Nationwide Coserage 800-336-fM6
--.-347-3700-
/O 11400101 43
(_/
marysimons 1 earlier conference before the panel as reconstituted in that 4
2 basically the standardization of scenario development is 3 relatively well known and available publicly. If the Board 4 to on its own determine that, as someone has told me, that 5 not a thick enough slice was taken, that is sort of a 6 separate issue. In fact, it might be almost separately, in 7 our judgment, reviewable in other forums.
8 FEMA does have published guidance on its 9 implementation of its regulatory process and that has been 0 served on all parties is a relatively standardized process, 11 and as each year goes by in the rep. process it becomes more
(} 12 13 and more standardized.
But basically, as stated in our filing, we 14 believe, and I believe in this case there are 38 evaluators, 15 that the 38 evaluators without a predesigned exercise could 16 through free play messages and simulation of other events 17 test the process by which the emergency response capability 18 was measured, and that is basically our position.
19 Our problem by the supplement to Interrogatory 20 No. 9 that I have just referred to the Judges is that if in 21 fact it is the Board's conclusion that FEMA is in the 22 posture of providing only fact witnesses, and we have made 23 available to all parties and everyone knows the post-l 2/ exercise report and has known for a long period of time
) 25 everybody who attended for the purposes of FEMA or its ACE-FEDERAL REPORTERS, INC.
202 4.47-370) Nationwide Coserage 80th33MM6
O
(,/ 11400101 44 marysimons 1 contractors the exercise, then we are not longer a 2 rebuttable presumption under the MOU.
3 We are basically in the status that we have been 4 turned into fact witnesses and we think it is a 5 substantially different approach than has been taken by 6 prior Boards in our understanding of the MOU.
7 JUDGE FRYE: Is that a question though between 8 you and the staff? If the staff wants FEMA to present fact 9 witnesses, I assume FEMA would present fact witnesses, and 10 in contrast, I would assume if they asked for experts, that 11 FEMA would present experts.
(} 12 13 MR. CUMMING: Your Honor, FEMA's obligations are with respect to the memorandum of understanding, and if the 14 memorandum of understanding were to be interpreted to call 15 for fact witnesses, to the extent FEMA was able to, I think l 16 that FEMA would comply with any appropriate request.
l 17 Our understanding of the MOU is that we are 18 providing expert witnesses and that we are not merely lining l
19 up all evaluators on the day of the exercise and taking l
l 20 their individual opinions, but there is something else in ,
l l 21 the FEMA process represented by its post-exercise I
( 22 assessment, and that is an expert judgment as an agency, and i
23 that judgment is entitled to a rebuttable presumption.
24 We are not saying that it cannot be rebutted. We
) 25 think that is what this process is all about, but that is a ACE-FEDERAL REPORTERS, INC.
202-m-3nx) Nationwide coserage fun 3356M6
11400101 45 marysimons 1 substantially different thing to litigate the report, the 2 post-exercise report as it is to derive de novo from FEMA 3 witnesses what they think occurred the day of the exercise.
4 As I think I have argued in brief in some cases, 5 and in fact we had the deposition of Mr.' Tanzman as I point 6 out as an example. Mr. Tanzman left early the day of the a
7 exercise. That does not mean that the exercise stopped or 8 that some appropriate action was not taken that Mr. Tanzman 9 did not observe.
10 FEMA is in essence one version of what occurred 11 the day of the exercise and we have put our fact version of
(} 12 what occurred the day of the exercise before the world in 13 the form of a post exercise assessment, and we are willing 14 to defend that assessment.
15 JUDGE FRYE: And that includes your conclusions 16 or just facts?
17 MR. CUMMING: That includes both our facts and 18 our conclusions.
19 JUDGE FRYE: The regulations say that a full-20 participation exercise, and I paraphrase it, is as full as 21 possible short of actually involving the public. Now why is 22 it a problem for FEMA for that exercise to be examined as to 23 whether it complies with that standard in our regulations?
24 MR. CUMMING: If you have restated your question l 25 in another form as to whether FEMA believes this was a full-ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwkie Coserage 804336-6M6
i rm
(-) 11400101 46 marysimons 1 participation exercise, it can't make that judgment.
2 JUDGE FRYE: Right. I'm not asking you to make a 3 judgment as to whether it is a full participation exercise.
4 I'm asking you why it is a problem for the question of 5 whether it is a full participation exercise or meets the NRC 6 regulatory standard for a full participation exercise. Why 7 does the examination of that question create a problem for 8 FEMA?
9 MR. CUMMING: The answer is as I have previously 10 stated. We believe basically there is a relevancy situation 11 with respect to scenario development, the scope of the 12 exercise and that it is a relatively standardized process.
( )#
13 If it is the Board's wish to examine how that process is 14 standardized, than that is in essence a separate proceeding.
15 JUDGE FRYE: I'm not talking about examining 16 anybody's process. When you test A, B and C and you don't 17 test D, E and F, then the question comes along, the 18 intervenors some along and they say that is not a full-19 participation exercise.
20 MR. CUMMING: FEMA's position is that not all 21 aspects of every emergency plan must be tested in each 22 exercise in order to meet FEMA's requirements. In fact, I 23 believe there is an analogy, although I am not that familiar 24 with NRC prior decision law with respect to quality
( 25 assurance on onsite. NRC does not represent to the world ACE-FEDERAL REPORTERS, INC.
202-347 3700 Nationwide Coverage sn336-fM6
11400101 47 marysimons 1 that it in fact has tested every pipe fitting, every weld or 2 whatever. In other words, that is not the process. The 3 process in essence is an audit' technique.
4 Now FEMA relies largely on the fact that the 5 exercise process is continuing and that there is a remedial 6 exercise process and there is a method by which corrections 7 can be made and there is a correctability factor with
' 8 respect to its determined efficiencies and its actions 9 subject to correction.
10 JUDGE FRYE: We recognize that it is an ongoing 11 process. There's not question about that.
1
(} 12 MR. CUMMING: It definitely is since the Board 13 has requested and the NRC has requested us to review 14 Revisions 7 and 8.
t 15 JUDGE FRYE: Well let me leave that for a moment.
16 Is it still LILCO's position that this was a full l
l 17 participation exercise?
l .
l 18 MR. IRWIN: Yes, sir, and for many of the same 19 reasons Mr. Cumming indicated, that there has not been ever l
20 to my knowledge any exercise which tested all 35 of the FEMA 21 criteria nor do I expert there ever will be one nor does l
22 FEMA consider it essential nor does any Licensing Board ever l
23 considered it essential.
l l
24 JUDGE FRYE: Are you aware of any case where it
( 25 has ever come up?
MR. IRWIN. I'm not sure anybody ever thought it was a problem before.
l A -F:1(DER wr. Ipngc,yag,use RS IN ly apt REPORTya rf[ygpjQg
^
11400101 48 marysimons 1 analogy to the kinds of techniques by which the staff 2 reviews other kinds of questions supplying educated 3 judgments to a sampling of a large process and looking at 4 what it sees and trying to follow difficulties.
5 I think it probably defies any kind of 6 statistical analysis, and I'm sure it defies blanket 7 coverage just because of the limits of resources and 8 efficiency.
9 But, you're right, I'm not aware of any decision 10 of law on it and, unfortunately, of any law on that obscure 11 phrase in the regulation as full as possible without
(} 12 involving the actual public. It certainly doesn't say 13 involving all 35 FEMA criteria, but not involving the 14 participate by the general public.
15 JUDGE FRyE: It's very general, you're quite 16 right. It's very general. " Fall participation when used in 17 conjunction with emergency preparedness exercises for a 18 particular site means appropriate offsite local and State 19 authorities in local emergency plans as is reasonably 20 achievable without mandatory public participation shall be 21 conducted for each site at which a power reactor is 22 located," et cetera.
23 Now there is the regulatory standard as to what a 24 full participation exercise is supposed to be, and like most
( 25 NRC requirements it is very general.
But the question that comes to our minds is that ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coierage M4346M6
11400101 49 r.arysimons 1 because you have got a standards in our regulations and not 2 in any regulatory guidance or regulation of FEMA as to what 3 this full-participation exercise is supposed to be, then it 4 seems to me that it is permissible for an intervening party 5 to come along and say what you did didn't meet that 6 standard.
7 MR. IRWIN: But certainly when if there were a 8 standard against which -- well, it's a free country, there's 9 a First Amendment and everybody can say what they want to 10 say. The difffculty with a standard like this is that it is 11 difficult to frame for litigation, and one of the problems lll 12 we are having, quite frankly, is with the nature of the 13 discovery.
14 It may well be that the difficulties that are 15 being encountered right now are of two kinds.
16 One is that FEMA has a process which it has it 17 believes or at least so it says followed in this case and it 18 has been proven acceptable in hundreds of other exercises 19 conducted over the past six years. It has never been 20 l cha.lenged before.
I 21 ' Secondly, a number of the kinds of inquiries that i
22 are being made in discovery go less toward what was done and 23 what was not done than to why something was done or not 24 done, the mechanics and details of the process of selection.
l {
h 25 I would agree with Mr. Cumming that those kinds t
ACE-FEDERAL REPORTERS, INC.
202-347-37(1) Nationwide Coserage W E L 3 M-MM
l n
C/ 11400101 50 marysimons 1 of issues are not central to this proceeding. If the 2 question is whether or not the Coast Guard needs to 3 participate, then the question of why the Coast Guard 4 participated to the extent that it did or didn't is not 5 necessarily relevant.
6 If the Board believes that in fact a Coast Guard 7 cutter out to go around and bore holes in Long Island Sound 8 as a clear-cut matter, then whether it did or didn't is the 9 only question to ask rather than who called Bosuns Mate whom 10 on what day.
11 JUDGE FRYE: What you're saying in a sense then
(} 12 13 is why can't you stipulate to what was done and what wasn't done, or more particularly what wasn't done.
14 MR. IRWIN: That's right, and I think a lot of 15 those issues have been addressed as factual matters in 16 discovery to date. I think that where there is going to be 17 a need for argument is going to be on two issues. One, what 18 as FEMA practice been to date. It is LILCO's understanding 19 and belief that the exercise at Shoreham was as full as any 20 that has been conducted, and I think we are planning on 21 substantiating that.
22 The second is, and I'm sorry, it was a longer 23 sentence that I intended and I'm afraid maybe jumped right 24 through my mind and out the other ear.
25 (Laughter.)
ACE-FEDERAL REPORTERS, INC.
mmm, s_m_. - g
- m
(_) 11400101 51 marysimons 1 I'm sorry, the interpretation is as full as 2 practicable under the circumstances. Now there was a very 3 salient circumstance on Long Island in early February of 4 1986 which was there was a criminal ordinance in effect 5 which had more than the average chilling effect on the 6 degree of planning that one could engage in.
7 Sirens were not tested, brochures were not 8 distributed and EBS messages were not broadcast for the very 9 simple reason that people were afraid of being criminally i
10 prosecuted, and one could not reconfigure an exercise in the 11 36 hours4.166667e-4 days <br />0.01 hours <br />5.952381e-5 weeks <br />1.3698e-5 months <br /> between the granting of injunction and the start of t 12 an exercise if it was to include those things.
(}
13 Now that may or may not be a reasonable fact of 14 life or circumstances to be taken into account. We think it 15 was, but there may be room for argument. That kind of thing 16 may be subject to discussion..
17 JUDGE FRYE: In the sense of a stipulation or 18 what?
19 MR. IRWIN: I'm not sure the intervenors would 20 stipulate, but that would be a reasonable basis for 21 stipulation.
22 JUDGE FRYE: Well, I'm not talking about 23 stipulating whether it is reasonable or not. The only thing 24 I was pursuing is whether it would be possible to stipulatO 25 that A wasn't done, B wasn't done, C wasn't done to avoid a l
ACE-FEDERAL REPORTERS, INC.
~_ c_, -
t :o2.m.m,
~ ss) 11400101 52 marysimons 1 lot of this, you know, either it was or it wasn't.
2 , MR. IRWIN: But to some extent that has been 3 taken care of. I think there are some issues, particularly 4 I guess under contentions -- may not so much under 15 or 16, 5 but to some extent even under them where intervenors contend 6 that what was done was definitionally an insufficient 7 representation, and we would say, no, it was sufficient, and 8 then we get into the question of the educated eyeball versus 9 the statistic sampling or other theories of measurement.
10 JUDGE FRYE: Certainly there is room for l 11 argument, but the basic facts of what was not done, it seems
(} 12 to me, are pretty evident to everybody.
13 MR. IRWIN: With the caveat that they would say l 14 something was not done, and we would say, yes, it was, and 15 then we would get into definitions of what was and what 16 wasn't.
17 JUDGE FRYE: Well, you can get into questions of 18 sufficiency as to this, too.
19 MR. CUMMING: I don't mean to divert you from 20 this issue, but your question followed on the discussion of 21 Mr. Bordenick. FEMA believes it would be extremely helpful 22 if within some time frame the Board could ask all parties to 23 designate who they wish to call as fact witnesses and who 24 they wish to call as expert witnesses.
, ( 25 JUDGE FRYE: We're going to come to that.
t ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 800-33M%46
11400101 53 marysimons
. I' MR. CUMMING: Oh, fine.
2' JUDGE SHON: I wanted to ask Mr. Irwin and 3 possibly Mr. Cumming a question very allied to what you have 4 just-been discussing, and that is if this was a full-5 participation exercise, was it the full-participation
- s 6 exercise? Full-participation exercises are required at 7 certain times. One of the times when such an exercise is 8 required is within a year before a plant goes above five 9 percent of power or some such thing.
10 If this is, so to speak, the last look before one 11 pushes the button, it might be important as to how full a 12 full-participation exercise is if it is this licensing j 13 exercise, so to speak. Is that the one you think it is?
14 MR. IRWIN: Judge Shon, let me just put it in 15 terms of a fervent hope.
16 (Laughter.)
17 And let me amplify that a little bit. First of 18 all, the rule to which you speak is the subject within the 19 last few days of a proposal for amendment which I just saw 20 yesterday in the Federal Register which would extend the one-21 year period to two years based on FEMA's experience to date 22 with several hundred exercises and the NRC's concurrence in 23 the length of time out to which one can look.
24 Even in the meantime there has been at least one 25 exemption case I'm aware of which has extended the 12 month ACE-FEDERAL REPORTERS, INC.
- .- -- + c-,. --
I (s/ 11400101 54 marysimons 1 period. Having been through something of the logistics of 2 planning for an exercise, one doesn't like to hold them any 3 more frequently than one needs to. They are substantial 4 projects.
5 It is our obvious hope that this is an exercise 6 sufficient to grant a license. It is also our expectation 7 that in the event that the Board finds that what was 8 demonstrated by the exercise reveals certain deficiencies, 9 Shoreham and LILCO will like other plants and licensees be 10 given the opportunity to demonstrate in a remedial exercise 11 that they have cured those problems, not that we go back to
{} 12 ground zero, but that we go back and we cure those problems 13 by a means that FEMA and the NRC in their expertise consider 14 to be sufficient.
15 That's probably more than you wanted to hear.
16 JUDGE SHON: No. I gather what you've said, and 17 I'm looking at this time as regardless of the specific 18 length of time that it must occur before licensing, whether 19 it's, so to speak, the last look before licensing, except l
l 20 for remedial exercises for things found wrong, and that you 21 feel it is; is that right?
22 MR. IRWIN: That is our intent, yes, sir.
l I
23 JUDGE FRYE: Do you want to respond to any of f 24 this?
) 25 MS. LETSCHE: I did. I wrote lots of things l
l ACE-FEDERAL REPORTERS, INC.
202-347-37m Nationwide Coserage A n3364 M6
's_j 11400101 55 marysimons 1 down, but they sort of cover about 50 different subjects 2 that went by while everyone else was talking, but there are 3 a couple of things that I would like to respond to, and let 4 me do it going backwards and talking about the most recent 5 thing discussed first.
6 There was a lot of discussion about what it is 7 that is challengeable and what isn't challengeable with 8 respect to this February 13 exercise, and I think a lot of 9 that question about the pre-exercise facts or things that 10 occurred prior to the exercise or what is FEMA's practice 11 has really been mischaracterized, and I don't think 12 deliberately, but has really gotten out of hand in terms of
(')i u_
13 the rhetoric that the parties are using in all of their 14 filings.
15 I think the Board is absolutely right. There are 16 things that everyone has agreed to and the request for 17 admissions have taken a lot of things out of contention in 18 terms of what happened and what didn't happen, but it is 19 very important, not just with respect to Contentions 15 and 20 16, but with respect to the other admitted contentions to 21 determine the significance of what did or didn't happen.
22 In that connection, the why as to why things did 23 or didn't happen or how they did or didn't happen can be 24 very important.
25 As you heard, there is going to be discussion ACE-FEDERAL REPORTERS, INC.
M-347 37tu) Nationwide Cmerage 8(433MM6
l I l l
l 11400101 56 I
. marysimons !
1 about the significance of whether something was or was not. !
l i 2 admitted, and LILCO is' going to argue, as you just heard 3 that the fact that certain things weren't done doesn't I 4 matter. You can still license the plant.
5 Well, if there is a reason that they weren't i'
6 done, i.e., because the person knew they were incapable of 7
doing them, that could be very significant.
- 8 More importantly though, getting beyond i
9 Contentions 15 and 16 which just go to whether you did or 4
10 didn't and what the significance is, there are lots of other 11 admitted contentions which say specific exercise objectives
(} 12 which FEMA believed were met in fact were not, and there are 13 reasons in the contentions as to why we believe that is 14 true.
15 There are also contentions which allege that the i 16 responses that were made during the exercise were 17 inappropriate or improper responses to what happened in that 18 scenario.
! 19 Now in order to rebut the conclusions that FEMA 20 drew on those issues, which is what is at issue in this 21 proceeding is those FEMA conclusions, the intervenors have 22 to be able to tell what the basis was of FEMA's conclusions l
l 23 and what did they think an objective meant, and what did l
24 they understand it would take to satisfy it and why did they
() 25 think that what they observed constituted satisfaction of ACE-FEDERAL REPORTERS, INC.
202 Nationwide Coverage 8m 3M-6646
,._-.,,,___.,.._,_,_.,,,_,._,_,_,.-347-3700_ _, _. . . , _ . - . . _ _ . _ , , , _ _ , . _ , _ , _ , . _ . . _ ,,_-___. _ - .,,_- _ _ - ,_
~ 11400101 57 marysimons 1 that objective.
t.
2 The intervenors have reasons why they believe the 3 opposite, but in order to rebut what FEMA said we need to 4 know their basis, and that is why getting into what the 5 objectives meant, what the scenario meant, what was intended 4
6 by it and the details of it is very important if the 7 governments are going to be able to do what they are 8 entitled to do under UCS which is challenge those exercise 9 results and FEMA's conclusions. And I think you just have 10 to look at a bigger picture and you can't talk about 15 and
- 11 16 and it did or didn't happen. Certainly what did or
(} 12 didn't happen-is out there, but the evaluation of that is 13 what is at issue here.
14 What FEMA said about it is what is at issue, and 15 in order to challenge it we have to know why FEMA said what 16 it did, and that is why we are pursuing the discovery we
- s 3
17 are.
18 I think it is significant that I didn't really 19 hear an answer from Mr. Cumming to your question, Judge
)
20 Frye, as to why he was not permitting his witnesses to be 21 deposed concerning what they are going to be testifying 22 about.
3 23 There is an order, and there has been an order on 24 the table and several subsequent orders saying what
) 25 contentions have been admitted and discovery is supposed to
! ACE-FEDERAL REPORTERS, INC.
202-347 37(X) Na110nmide Con crage 8(Xb336-(M6 y . . . . _ . . _ . _ , . . . . . . _ , _ _ _ _ , . _ _ , , . , _ _ . _ . _ _ _ . . - . . , . - _ . - . . . _ - _ . , - . , . . - . _ _ _ _ . . . . , , . . . , _ _ _ .
h
,. I t
) 11400101 58 marysimons 1 be proceeding on those contentions.
2 Mr. Cumming has designated witnesses for trial 3 and no one is suggesting that he should change his 4 designation or that he has done it wrong or whatever. He
', 5 said these are my people who are going to-testify.
6 Discovery is meaningless if the people who are going to be 7 getting up there and presenting testimony on behalf of a 8 major actor in this proceeding and in fact the ones whose
[ 9 conclusions are rebuttable if the other parties are barred 10 from finding out what they are going to say, and I didn't g 11 hear an answer to that during all of Mr. Cumming's
(} 12 discussion. ,
- 13' JUDGE FRYE
- The Board certainly agrees with you
- 14 that there is absolutely no reason why witnesses should be 15 barred from being questioned with regard to their r 16 testimony. Now there may be some underlying problems here 17 with regard to what is in issue, but I don't want to get 18 bogged down in whether this was an appropriate instruction 19 to the witness. I think we have got enough on our plate as l 20 it is.
l 21 MS. LETSCHE: Well, I'm very glad to hear that l
22 and that should enable us to proceeding with a little more I
( 23 meaningful discovery in light of that ruling.
l
[ 24 Let me also just clarify one other thing which I
() 25 heard being raised a few times in the course of other i
l ACE-FEDERAL REPORTERS, INC.
. 202 .147 3700 Nathmwide Coserage
- D-346M6
. ~ . - _ - . _ _ _ _ _ , _ . , . . _ , _ _ _ , . , . . ___,,__ _ _ _ _._ _ _ _ _ _ ._ _ , ,,,.. _ .. _ . _ . - , ._. .
11400101' .59 marysimons 1 people's comments, and that is this question about FEMA's 2 practice and irEMA's pra . cice in other exercises and a 3 suggestion at least that 'y telling us what FEMA has done in
! 4 other exercises all of the things that are relevant in this 5 proceeding have already been laid on the table and that 6 there isn't any way that FEMA processes should be able to be 7 challenged.
3 l 8 I think the Margulius Board understood that and I j 9 -assume that this Board does, too, having read through the 10 documents. There isn't a challenge going on here to some 11 kind of generic action by FEMA. FEMA did what it did on the 12 13th of February. It did it at LILCO's request and at the 13 NRC's request and pursuant to FEMA's rules, but that is r 14 really not the issues here and we are not suggesting that it 15 was or wasn't different or the same as what FEMA has done
- 16 hundreds of other times. That is not the point here. Other i
17 exercises aren't the point here, and FEMA processes in terms 18 of the 350 process and the MOU aren't at issue.
- 19 What is at issue is what FEMA concluded here and 20 how they reached those conclusions and the right of the l 21 governments to challenge those, and I think the contentions 22 are pretty straightforward in not challenging FEMA processes j 23 or getting into what happened with respect to any other i
24 exercise.
25 I only have a couple of other points which were ACE-FEDERAL REPORTERS, INC.
M NationCde Coserage 80k33MM6
- - - --- - . ~ - , .
_ _- 34 7- 170 ). . , _ _ _ . ~ . _ . - . - . , . _ . . _ _ , , _ . . _ _ _ _ _ _ - - _ . . . . _
N 11400101 60
.marysimons i 1 discussed real early in everybody's comments, but I don't 2 want to let them slip.
3 Mr. Irwin said something about he was glad to I 4 hear that the governments didn't have any document problems 5 in connection with discovery, and I just want to remind 6 everyone, and I think everyone knows that we do have a major 7 document problem with respect to FEMA because the exercise B evaluator critique forms, among others, are still being 9 withheld.
10 There was also some discussion about, you know, j
11 people need to work harder and we need to be able to get 3
(} 12 more done, and I just want to say that as far as I'm i 13 concerned, not just the governments, but all parties in this 14 case have been working very hard and taking 18 depositions 15 in 10 days which in some cases is two a day and in some 16 cases it is three a day I think is about as hard as you can 17 expect anyone to work and there just are limits to what else
! 18 can be done.
19 The final thing is a suggestion that there was
- 20 something improper or inappropriate about the governments 21 designating witnesses at this stage of the process, and I 22 have a couple of points to make on that, i 23 No. 1, there wasn't any ruling on the
- 24 admissibility of contentions until October. Obviously you
() 25l are not going to go out and start preparing for trial i ACE-FEDERAL REPORTERS, INC.
202-347-37W N.ationwide Cos erage EXk334 u e
4 m-k_)'11400101 61 marysimons 1 when you don't know what the trial is going to be on.
2 In addition, as LILCO is aware, it is not 3 something that one does overnight locating witnesses. It is
.i 4 complicated with respect to the governments because we are 1
5 in fact governments and there are more complicated processes 6 involved in retaining people when you are going to be a
]
i 7 government contractor and those things do not happen 1'
8 overnight.
9 I would also be curious to know if it is the case i 10 that LILCO does not intend to identify any more witnesses 11 itself because they had told us earlier that they did intend
(} 12 to identify some additional ones, which we frankly expected l 13 since it has been the case in all these proceedings and the j 14 process is a continuing one. I mean if they don't intend to l
15 cesignate any more, that would be useful information for
! 16 everyone to know with respect to planning.
17 JUDGE FRYE: We need to address the question of 18 witnesses and we need to address I think a cut-off date for 19 the designation of witnesses.
20 Now have you gotten through, Ms. Letsche?
21 MS. LETSCHE: Yes, I have. Those were the high i
- 22 points that remained.
I 23 JUDGE FRYE Judge Shon has a question.
24 JUDGE SHON: This partly has been brought up by
() 25 Ms. Letsche in what she has said, but it is something that I
i ACE-FEDERAL REPORTERS, INC.
o m,.m., __ m_,. --
, - - - . ,.--n. - - - -
()
(_j 11400101 62 marysimons 1 has been batted around in the back of my mind anyway. It's 2 the matter of the challengeability or testability of FEMA's 3 general procedures in a forum such as our own.
4 Now I am not at all familiar with FEMA's 5 regulations or with any case law in that they use 6 regulations really. I am aware of course of the fact that 7 the NRC has a section in its regulations which forbids the 8 challenge of a regulation in a particular case without very 9 special circumstances being present.
10 However, that protection, so far as I know, does i 11 not extend to many, many things that the staff uses
(} 12 regularly and employs in practice. I don't believe that 13 that, for example, extends to NUREG reports or to Branch 14 Technical Positions or even to regulatory guides themselves.
15 What is there in FEMA's regulations or in ours 16 that would suggest that things that seem to me at least to 17 operate at that level in the regulatory hierarchy, the 18 things that are more or less like Branch Technical Positions 19 and regulatory guides are, because FEMA is using them, for 20 l some reason not challengeable in this forum.
21 MR. CUMMING: May I respond?
22 JUDGE FRYE: Sure.
23 1 MR. CUMMING: I don't believe that is FEMA's 24 position. FEMA's position having been recently served with
( 25 a copy of the filing of the staff on the 1st with respect to j ACE-FEDERAL REPORTERS, INC.
m >. . ~ .- m_ . , -
11400101 63 marysimons 1 our participation in this proceeding which is under the MOU 2 I think clearly indicates that you are not required to look 3 to FEMA's regulations or guidance with respect to whether 4 they are outcome determinative in this case with respect to 5 whether this is a full participation exercise.
l 6 You must look to NRC regulations and procedures 7 in order to do so. I don't wish to be in the position of 8 testifying, but I think it is important to state that the i
9 350 process is designed as published in the regulation of 10 FEMA to deal with the situation where State and local
- 11 governments participate in offsite safetysresponse and 12 preparedness.
13 The basis of FEMA's not making a finding in this j 14 case was because the determination was made, and essentially 15 since it is a predictive process, which I believe previous 16 Boards have analyzed, and I believe there is a Catawba l 17 decision, and I don't have the cite right at hand, which j 18 talks about the nature of the predictive finding of FEMA.
! 19 FEMA officials believed that without State and
! 20 local participation it could not predict whether emergency i
21 response in the case of an emergency situation would or 22 would not be adequate.
23 Now basically the fact, and this goes to the
{
l 24 earlier request of Judge Frye with respect to FEMA's 25 position, in the absence of such a finding, then is the ACE-FEDERAL REPORTERS, INC.
l 202d47-37sA# Nanonwide Coserage m k L336-6M6
4 i' 11400101 64
, marysimons 1 Board stating or is the Board requiring that some other
{
2 level of finding or determination is contestable?
3 FEMA is faced with the prospect, and others may
} 4 disagree with this, that this may not be the only exercise 1
5 litigation faces. So it must in fact try and determine what 6 its responsibilities are under the MOU in this type of 7 situation. And assuming that the determination is that i
j 8 deficiencies as determined by' FEMA are findings litigable, 4
l 9 then that is a piece of knowledge that we don't actually 10 have now. In other words, the Board could substantially l
1 11 clarify what it is that is being litigated by analyzing what
(} 12 13 it is in the FEMA report or what FEMA's responsibilities
! are.
! 14 Our understanding is in fact that our ;
15 responsibilities are limited to what is under the MOU. We 16 are prepared to defend the report and we are prepared to 17 provide expert witnesses to defend the report, and that is l
18 our understanding of this proceeding.
19 JUDGE SHON: Well, perhaps my question wasn't as 20 clear as I hoped it might be. What I was really asking was
! 21 many of the contentions that have been objected to by FEMA 22 with LILCO's support are of the nature of things that say l
23 you didn't check enough of these or you didn't test enough ;
l
! 24 of those or you didn't go far enough.
() 25 It seemed to me, and I may be misstating your i
! ACE-FEDERAL REPORTERS, INC.
! 202447470) Nationwide Cmcrage MXk146Mtv i
(D 65 V 11400101 marysimons 1 position, that it is the position of LILCO at least and also 2 of FEMA that a proper answer to that is you can't have such 3 a contention admitted here because FEMA never checks more 4 than two of those buses and FEMA never looks any deeper than 5 this particular item, and in hundreds of times out at the 6 track FEMA has looked only at that many and therefore the 7 notion that one must look at more is not an admissible 8 contention.
9 The analogy that I was drawing is that in general 10 in NRC proceedings if the kind of thing is just the usual 11 staff practice, a Branch Technical Position or something, it i
(} 12 13 is challengeable, and you can say yes, you do need an extra few bolts in the head of the reactor vessel or something 14 like that.
15 Why is this different? And I guess I would like 16 both Mr. Irwin and Mr. Cumming to address these in either 17 order, gentlemen.
18 MR. CUMMING: Well let me react first ind tell
'i 19 you that FEMA only gives reasonable assurance in the case of 20 any predictive finding. It never purports to give 21 statistical assurance.
22' With that I'll let Mr. Irwin respond.
23 MR. IRWIN: Judge Shon, let me try. I look at 24 the accretion of several hundred exercises in accordance
() 25 with FEMA's guidance a little differently than I look at an NRC l
4 ACE-FEDERAL REPORTERS, INC.
mo.n., %. cm o.,. mm
ss 11400101 66 marysimons 1 Branch Technical Position or NUREG document. FEMA is a co-2 equal independent federal agency that is expert within its 3 province. It has an established manner of practice, and 4 that manner of practice is utilized by the NRC pursuant to a 5 memorandum of understanding authorized at the highest level, 6 namely, the Commission.
7 What FEMA contributes is a body of expertise, a 8 series of practices which happen to be largely memorialized 9 in guidance memoranda, but also in the experience of dozens 10 of emergency planners who have evaluated hundreds of 11 exercises.
(} 12 What that is is basically a rubric by which FEMA 13 contributes an opinion which the NRC then evaluates against 14 standards including, but not" limited to whether it was as 15 full as possible. So it is of a different degree of dignity 16 and a different nature than a Branch Technical Position. It 17 is essentially a construct which the NRC has accepted from a la co-equal federal expert agency.
- 19 I think there is a relevant question, and that is 20 whether FEMA has adhered in its construction or evaluation 21 of any given exercise to its historical pattern. And as the 22 Board knows, it is LILCO's contention, which the scope of
, 23 the issues may require us to spell out, that indeed what 24 FEMA did under this exercise was thoroughly consistent with
() 25 literally hundreds of other exercises.
ACE-FEDERAL REPORTERS, INC.
- m , ,, ~ _ m e ,,. . . m,_
rs J 11400101 67 marysimons 1 But I think that is the fair questions to ask and 2 not whether the basically accumulated formal wisdom of a co-3 equal agency embodied in a formal memorandum of 4 understanding between is itself subject to challenge in an 5 individual case. That is the distinction I would draw.
6 JUDGE SHON: But, Mr. Irwin, the thing that we 7 are used to having this shield around, if you want, this 8 refusal to challenge, is a very definite type of codified 9 wisdom. It isn't just somebody notes from exercises of 10 memos that people sent to one another. It is specific 11 regulations that have been published for notice and comment 12 and that have been incorporated into the Code of Federal
(~)T 13 Regulations. That is what is not challengeable.
14 Are FEMA's practices similarly published for 15 notice and comment and incorporated into the Code of Federal 16 Regulations and, if so, where and, if not, why are they not 17 subject to the same kind of scrutiny here that something 18 that the NRC hadn't treated this is subject to?
19 MR. CUMMING: What is published in the Federal 20 Register, if not in the Code of Federal Regulations per say 21 is the Memorandum of Understanding which is a formal treaty 22 ' at the highest level of two agencies by which one agency has 23 ! agreed to make use of the patterns, practices and expertise I
24 ! of the other agency as its agent for a process of evaluation O
(_j 25 on matters outside of its historic province of expertise.
ACE-FEDERAL REPORTERS, INC.
mco., m~mm,, mm.
n C 11400101 68 marysimons 1 What I think is a difference, Judge Shon, between 2 the NRC's evaluation of its own staff's practices and taking 3 on a case-by-case basis a very formal construct, which this 4 agency has used hundreds of times, and which is basically 5 the essence of one major part of another independent 6 agency's work and picking at it in individual licensing 7 proceedings as distinguished from seeing whether it is that 8 codified knowledge and wisdom has been fairly adhered to in
- 9 this proceeding.
10 I think you are entitled to assume that FEMA is 11 doing its job, in other words, that FEMA was doing its job
{} 12 13 in formulating its guidance memoranda and setting up its regional assistance committees and in its procedures for 14 setting up exercises. The question is whether in this case 15 they botched it.
16 There are a couple of other points Ms. Letsche 17 raised that I would like to address at some point, I don't 18 want to get sidetracked.
19 MR. CUMMING: I would like to state for the 20 record that FEMA is subject to the Administrative Procedures 21 Act like all other federal agencies, but FEMA counsel would 22 argue that this is not the forum to determine whether or not 23 FEMA has complied with the Administrative Procedures Act.
24 JUDGE SHON: No, and I didn't want to imply 25 that. I don't care to pursue that particular thing ACE-FEDERAL REPORTERS, INC.
202 .147 37011 Nanonwide Cmerage MtA34fM6
(~)
( ,/ 11400101 69 marysimons 1 further.
2 If the intervenors want to say something about 3 it, why we'll listen.
4 MS. LETSCHE: I don't think I have anything to 5 say on that point.
6 JUDGE FRYE: I have a question for Mr. Cumming.
7 You indicated in response perhaps before the questions, and 8 I'm not sure I caught all of this, but the impression I got 9 was that you have a feeling that somehow because of the 10 prehearing conference order the Board referred to the fact 11 that a FEMA finding is presumptively valid, and somehow that
(} 12 may have changed FEMA's role in this proceeding.
13 MR. CUMMING: That is what I was alluding to. If 14 it is the Board's judgment that it changes FEMA's role, then 15 FEMA would like tn know about it.
16 JUDGE FRYE: How do you think it changes FEMA's 17 role?
18 MR. CUMMING: Is there then in fact a second 19 level of findings, or however you characterize it, and 20 determinations is a word I would like to use, that there is 21 a deficiency or action subject to correction, and are those 22 determinations entitled to rebuttal presumption? We believe 23 they, that they themselves are entitled to some status under i
24 the MOU. If they are not entitled to status, then we are 25 converted mere into fact witnesses and FEMA will have to t
ACE-FEDERAL REPORTERS, INC.
202 347-3700 Nationwide cmcrage Mn33MM6
~ _
4 A
q) 11400101 E
70 marysimons 1 operate before this proceeding in the light of that 2 knowledge.
3 JUDGE FRYE: How could the prehearing conference 4 order possibly have changed your status in that way?
5 MR. CUMMING: Because of its text.
6 JUDGE FRYE: In what respect?
7 MR. CUMMING: It presumes that there has been a 8 finding and it doesn't state what that finding was.
9 JUDGE FRYE: But do you believe that the 10 determinations stated in the post-accident assessment are 11 entitled to presumptive validity under the regulations?
{} 12 MR. CUMMING: As we understand the MOU, and I say 13 we defer to other parties and other forums, including this, 14 as to their knowledge of NRC regulations, we believe under 15 the MOU that they are entitled to presumptive validity.
16 They may be rebutted, but that is not how the order now 17 reads.
18 JUDGE FRYE: Does the order say that they may not 19 be rebutted?
20 MR. CUMMING: The order speaks in terms of a 21 finding which is unclear as to what that finding is. It 22 does not specify as to -- it is not tied in at all with the 23 post-exercise assessment.
24 JUDGE FRYE: If that particular language were
) 25 removed from the order, would that relieve your problem?
ACE-FEDERAL REPORTERS, INC.
i w. mum seion.ide cowrne m3twa
- __ . . . ~ . , . _ - . - . - . .- . . _ .
i t
i 11400101 71 marysimons 1
-1 MR. CUMMING: No. What I am requesting is that 2
! the Board consider issuing an order which determined what i 3 findings or what determinations of FEMA are entitled to j 4 presumptive validity. If none are and FEMA is merely in the 5 proceeding as providing witnesses as to facts as opposed to l ,
6 being an expert witness with its findings subject to i
7 presumptive validity, then we have a different proceeding.
8 JUDGE SHON: I think I'm aware of the particular 9 phraseology in that order-that you've mentioned. The word l 10 " finding" may have been a poor choice of terms at the time.
11 The Board was stating I believe that since the Memorandum of l
(} 12 Understanding makes even a FEMA finding rebuttable, these 13 FEMA determinations were a fortiori rebuttable. It wasn't l
14 put quite that way and I rather wish it had been.
j 15 MR. CUMMING: That is a very important j
16 explanation, Judge Shon. I think that the reason is evident t
17 to all who have participated previously in this proceeding.
i i 18 The reason that FEMA is very concerned about it is because
- 19 FEMA has been examined in other forums with respect to i
l 20 whether or not it made a finding and why it did or did not
$ 21 make a finding. So it is not a term to be used loosely, and 22
) the term " finding" under the MOU is not defined elsewhere, 23 to our knowledge.
24 JUDGE SHON: I noticed a few nods as I said what
- ) 25 I said. Is it true that the other parties understood the i
i I
ACE-FEDERAL REPORTERS, INC.
202 .147 3700 Nationwide Coverage M U 3 h 6646
4 4
t.
11400101 72 i marysimons i
1 order to be saying what I said in interpretation of it?
2 Is that correct, Mr. Irwin?
4 l 3 MR. IRWIN: Judge Shon, I think I understood the 1-
-4 order as I just thought I heard you say you understood it.
j 5 (Laughter.) ;
i
! 6 JUDGE FRYE: I think we probably want to take a l 7 short break to confer, and when we come back I think that i
8 the points we want to address have to do with schedule --
1 1
9 the points we want to address have to do with schedules, the-i
- 10 cut-off date for the designation of witnesses and how all of
! 11 that should underplay with the motions that we have before 12 us that we have to rule on. Give us about 10 minutes to i 13 confer and will be back.
14 MR. LANPHER: . Judge, you may want to consider i
15 this also when you are taking a break. During some of this i
16 i discussion I briefly thumbed through the further revised l 17 standard format.
I 18 JUDGE FRYE: The cut and paste version.
l 19 MR. LANPHER: The cut and paste version, and I i 20 just have a couple of questions. At numerous places in the
- 21 margin on the left-hand side there are obvious marginal 22 notes. Those should just be disregarded, correct?
f 23 JUDGE FRYE: Yes, except where it indicates a j 24 page, and that page would refer to the page number if your 25 submission.
1 ACE-FEDERAL REPORTERS, INC. !
202-347-3'(t) Nationwide Coserage *x).33MM6
--, , . - _ , . . . - , . . . , - - _ , _ _ _ _ . , - , . , _ . _ - - . . . _ , . _ _ _ , . - , , _ . ...,--_.-._-_____--__.--_m--- . , .
^
(e~,s'11400101 73 marysimons 1 MR. LANPHER: Fine. My second question is that 2 in many places where, and I can do it best by an example.
3 If you would turn to page 87, your sequential number 87.
4 You've got, for instance, EX-42, see page 69. Now page 69
, 5 in your sequential thing is where EX-42 is subsumed.
I 6 JUDGE FRYE: Hopefully you will find it on page 7 EX-42.
8 MR. LANPHER: Well I did find it there, but when 9 we do this on EX-42 should we put not separately admitted,
- 10 subsumed under something or do we leave the EX-42 out 11 completely? We certainly don't see page 69.
12 JUDGE FRYE: It was put in there originally
}
13 simply as a matter of convenience so that if you were 14 thumbing through here and you got to the place where 42 was 15 supposed to be and it wasn't there, there would be some 16 notation as to where it was.
17 MR. LANPHER: Would you like us to add that cross-18 reference as to where things are to be found? And you've i
19 done that. By the way, if you look at EX-44 on that same 20 page, you say first sentence consolidated in ---
21 l JUDGE FRYE: I think it wouldn't hurt to keep 22 that sort of thing in.
7 i'
23 MR. LANPHER: Okay. That was my point.
24 JUDGE FRYE: There isn't very much of it.
( 25 MR. LANPHER: No, but in other words, each one --
i l ACE-FEDERAL REPORTERS, INC.
202-347 37m Nmonwide Coserage MRb336-6646
{
) 11400101 74 marysimons 1 we'll do it.
2 JUDGE FRYE: You may run across a place where I I 3 have missed putting in that kind of a notation.
4 MR. LANPHER: Thank you.
5 JUDGE SHON: Without a revised standard versions, 6 maybe this one should be the good speed version?
7 (Laughter.)
8 MR. LANPHER: This is going to be your version.
9 JUDGE SHON: Do we have another Biblical version?
10 (Laughter.)
11 JUDGE FRYE: We will recess for approximately 10
(} 12 minutes.
13 (Recess taken.)
14 JUDGE FRYE: Can we to back on the record, 15 please.
16 I had one other nit that I wanted to clear up, 17 not a nit really, in LILCO's response in support of FEMA's 18 motion to reconsider that aspect of Licensing Board's 19 prehearing conference order permitting challenges to the 20 scope of' February 13 exercise. There is footnote 4 which 21 Mr. Irwin referred to earlier, and that has to do with the 22 County ordinance preventing the exercise of certain portions 23 of the plant.
24 Do you have any reaction to that footnote?
( 25 MS. LETSCHE: Can we get it? Just a second.
ACE-FEDERAL REPORTERS, INC.
202-347 3700 Natsonwide Coserage fun 34N46
/m
-) 11400101 75 marysimons 1 MR. LANPHER: There are so many pieces of paper.
2 If you would us a moment.
3 (Pause.)
4 JUDGC FRYE: Off the record.
5 (Discussion off the record.)
6 JUDGE FRYE: Let's go back on the record.
7 I'll read it to you quickly. This comes in the 8 text where he says: "There is no assertion by FEMA nor any 9 allegation by intervenors that FEMA's methodology or 10 procedures for design and execution of the Shoreham exercise 11 are any different than those that it customarily uses for
(} 12 other exercises," and the footnote says, "Indeed, the only 13 substantial departure of the Shoreham exercise from the 14 scope of the exercise is known to LILCO and involves the 15 excision of direct physical manifestations of public 16 notification aspects of the plan - broadcasting of EBS 17 messages, sounding of sirens and distribution of public 18 information brochure. That departure is readily explained,"
19 and it goes on to say that, "Because of the County 20 ordinance, that was kept out of the exercise, and when the 21 County ordinance was enjoined it was too late to put it back 22 in."
- 23 MR. LANPHER
- Judge, I think we have a couple of 24 reactions.
25 First of all, I think there is a factual issue ACE-FEDERAL REPORTERS, INC.
20?-34"-3700 Nat amw kle Cm erage N u k 3% N4
/
(_)\ 11400101 76 marysimons 1 concerning the representation there which needs to be 2 pursued in discovery. My recollection is that the basic 3 scenario for the exercise as drafted by LILCO was prepared 4 well before the County ordinance was even in draft form, and 5 I think it would be relevant to see whether those elements 6 were included in the proposed scenario earlier or not.
7 Quite aside from that question, however, you are 8 back to the regulatory standard of whether this was a full 9 participation exercise and what the evidence will have to 10 adduce and the expert testimony will have to adduce is 11 whether those elements of an exercise, which were omitted,
(} 12 13 are significant in the overall scheme of the NRC's regulatory requirements.
14 It was our understanding that it was LILCO's 15 choice not to include those items or even to plan to include
- 16 those items and an injunction against that County law was in i
17 effect at the time of the exercise.
18 JUDGE FRYE: Three days before I understand.
19 MR. LANPHER: That's right, but there was no l
i 20 prior restraint in terms of planning for that such that if 21 the injunction was issued, as in fact it was on the loth of 22 February, and that is my recollection of the date, that it 23 l could have gone ahead.
3 l 24 j JUDGE FRYE: So your position basically is you
() 25 are not sure that they originally had that portion included ACE-FEDERAL REPORTERS, INC.
202 .147- nu) Nationu nie Cos erage An3% N46
r
(_y .
) 11400101 77 marysimons 1 in the exercise?
2 MR. LANPHER: That's No. 1. No. 2, I think it is 3 totally irrelevant against the regulatory standard.
4 JUDGE FRYE: With regard to schedules, our 5 reaction, and I will hear from any of you who think this is 6 incorrect, but our basic assessment of the status of this 7 proceeding is that it makes very little sense to proceed to 8 discovery until we get rulings out on the various matters t
9 having to do with the scope of the hearing that are now 10 pending before us.
11 Does anybody disagree with that?
(} 12 13 MR. IRWIN: There may be some aspects, Judge Frye, that don't involve questions of scope where matters 14 are milling on. I think, for instance, the subjects raised 15 by our motion to compel discovery from the State of New York 16 and the matters which will be raised by our motion to compel 17 against intervenors generally will not involve issues of the 18 scope of the exercise.
19 Certainly the depositions of individuals where 20 scope questions tend to come up, we totally agree that we
(
l 21 needn't go forward until we know what people are going ---
l 22 JUDGE FRYE: Basically that is what is l
l 23 outstanding now, isn't it? Interrogatories have basically 24 been filed and answered or objected to.
(
25 MR. IRWIN: That's correct, although what I am ACE-FEDERAL REPORTERS, INC.
mmm ~_ m m., - n-i . - - . . - _ . - _ - - . . _
O)
(_ 11400101 78 marysimons 1 suggesting is that if the Board can possibly aid us on them 2 in the meantime or the other parties, there may be areas 3 where that can proceed. I don't know.
4 MS. LETSCHE: Let me just also tell you,' Judge, 5 that we just received a third set of interrogatories and a 6 stack about this thick of requests for admissions from 7 LILCO. I think we got them yesterday or the day before. So 8 that in terms of your document discovery type stuff is still 9 out there.
10 I don't believe we have anything pending out that 11 has not been responded to or subject to a motion, but we
{} 12 13 have this third set of interrogatories and this gigantic set of admissions.
14 JUDGE FRYE: That you just received?
15 MS. LETSCHE: That we just received, yes.
16 JUDGE FRYE: Do you have any more interrogatories 17 planned?
18 MS. LETSCHE: We might have a small supplemental 19 one that we have been thinking about, but only one, and it 20 would -- assuming that we get responses to the stuff that is 21 out there and with the motions to compel, I don't think we 22 are at this time contemplating any additional ones other 23 than this one small set which might go in the next few days.
24 JUDGE FRYE: A small set of interrogatories to 25 LILCO?
ACE-FEDERAL REPORTERS, INC.
202 347-37(1) Nationwide Cosetage N4 X h 34-M
.. . - . . . _ _ _ _ __ _ _ _ _ _ ___ _~.m i
.i -
11400101 79 marysimons 1 MS. LETSCHE: Yes.
2 JUDGE FRYE: Do you have any more planned by way 3 of interrogatories?
4 MR. IRWIN: Not at this point, Judge Frye. No, 5 we don't.
6 JUDGE FRYE: The same goes for the production of 7 documents?
l 8 MS. LETSCHE: Yes.
9 MR. CUMMING: May I speak briefly?
j 10 MR. IRWIN: We have many unsatisfied requests, 11 but no more are planned.
i
(} 12 JUDGE FRYE: Yes, Mr. Cumming.
13 MR. CUMMING: The Federal Emergency Management i 14 Agency has completed and served on all parties and the Board j 15 complete indexes to the documents it possesses. It did in
- 16 fact move to protect certain documents, and at that time we
( 17 had thought it had, although they were in fact indexed, had i 18 included in the documents produced to you In Camera all 19 annotated drafts of the post-exercise assessment. There l
20 were some that were not included.
l i 21 However, FEMA intends to be bound with respect to l
22 production of those with respect to whatever ruling you give I
23 on the documents which have been produced In Camera to you.
(
24 In other words, there were several more drafts that we have t () 25 located with annotated comments which were not produced to i
- ACE-FEDERAL REPORTERS, INC.
202 347-37to Nationwide rov tage an33MM6
b
( 11400101 80 marysimons 1 you for In Camera inspection, and this is post-exercise 2 drafts with handwritten comments or annotations on the 3 margin March 13th and April 7th ---
f 4 JUDGE FRYE: That are relevant to their request 5 for production?
6 MR. CUMMING: Yes.
7 JUDGE FRYE: You had better furnish them to us In 8 Camera sealed.
9' MS. LETSCHE: On that point, Judge Frye, I 10 believe at the very beginning when you gave your list of 11 things that were outstanding I think you said that our
(} 12 13 motion to compel FEMA to produce documents and witnesses and answer interrogatories had been fully briefed, and we have 14 not responded to the motion for protective order which FEMA 15 filed following that. I think that is due by the end of 16 next week, or near the end of next week.
17 JUDGE FRYE: Okay. Well, all right. It would 18 seem then that there would be no reason to hold up on the 19 answers to interrogatories. Let's let that proceed.
20 Let's hold back though, pending a ruling from us 21 any further depositions. Is that agreeable to all the 22 parties?
23 MS. LETSCHE: That's fine with us.
24 JUDGE FRYE: All right. We will rule as quickly 25 as we can on these matters regarding scope, and I would i
l i
l ACE-FEDERAL REPORTERS, INC.
202-347 3700 Nationwide Coverage 804336W46
,r x i 11400101 81 marysimons 1 anticipate that we will get those out first. I would hope 2 that we can get those out before we get enmeshed in the 3 motions to compel. Now you know better than I what is in 4 those. Is that going to be possible in your view, or do 5 those need to be taken up at the same time as the motions 6 for reconsiderations ---
7 MR. IRWIN: Judge Frye, in our view, the scope 8 questions are paramount in importance. From our standpoint 9 the motions to compel will relate aid the fruitfulness of 10 those depositions which we have yet to take which are 11 basically most of the ones we would take. But clearly the
(} 12 13 scope questions are paramount.
Yes, motions to compel are not so JUDGE FRYE:
14 bound up in scope that they can be deferred.
i 15 MR. IRWIN: I think that is correct.
16 JUDGE FRYE: Is that your view as well, Ms.
17 Letsche?
18 MS. LETSCHE: Yes, that it's appropriate to do 19 the scope question first.
20 JUDGE FRYE: That we can take up the scope 21 question without having to become involved in motions to 22 compel?
23 MS. LETSCHE: Yes.
24 MR. LANPHER: Judge, just to clarify, when you
() 25 say the scope ---
ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 800-336-fM6
- . ) 11400101 82 marysimons
'l JUDGE FRYE: This motion to reconsider and your 2 objections.
3 MR. LANPHER: And the various responses.
4 JUDGE FRYE: That's right.
5 MR. LANPHER: FEMA's motion for reconsideration 6 and the government's objections.
7 JUDGE FRYE: All right, we will get that out as
- 8 quickly as we can and then follow that on as quickly as we 9 we can with orders on the motions to compel.
10 It would seem to me that we will set a date in a
11 our order on the motion for-reconsideration and objections 12 for the completion of depositions, and I would think that
{}
13 that would probably be reasonably set in mid-January given 14 the fact that the holidays are coming up.
15 Now there has to be a question of when witnesses 16 should finally be designated, and it would seem to me that 17 that should probably be by the end of December for the final 18 designation of witnesses.
19 MR. IRWIN: My only caveat about that.is we may 20 have to literally double up on depositions during the first 21 two weeks of January. We are willing to do that if need t
22 be. Mr. Letsche referred to four depositions in one day,
- j. 23 and that is four short sequential depositions. I mean two r
i 24 depositions simultaneously. Provided that the County and Ik 25 other intervenors are willing to do that, we have no problem l
l
\
l ACE-FEDERAL REPORTERS, INC.
2"2-347-3700 Nationwide Coserage 804336-M46
,7 s_) 11400101 83 marysimons I with that. I just don't want to be locked out of discovery 2 or forced into extending a deadline by a last-minute 3 designation of a slew of witnesses.
4 JUDGE FRYE: So you are arguing basically to move 5 the date for designation of witnesses up?
6 MR. IRWIN: If anything, we would like to see it 7 moved up about a week, say the 22nd of December which is a 8 Friday.
9 JUDGE FRYE: The 24th of December?
10 (Laughter.)
11 MR. IRWIN: Merry Christmas.
(} 12 (Laughter.)
13 MR. LANPHER: Let's make it a Happy New Year.
14 (Laughter.)
15 MR. IRWIN: I would like to see it before 16 Christmas in all seriousness, Judge Frye. you have to get 17 the papers together and you really just do have to take some 18 time to prepare. Unless Suffolk County or New York State 19 believe they have any reason why they don't expect to have 20 their witnesses gathered by Christmas, I would like to see 21 it before Christmas.
22 JUDGE FRYE: Assuming we have our ruling out to 23 you within the next 10 days, can you designate by December 24 24th?
O 25
() MS. LETSCHE: We will certainly try to do that.
ACE-FEDERAL REPORTERS, INC.
- o2 347-37m Nationwide Coverage 800-334646
l l
11400101 84 )
marysimons 1 We have a real problem with the contracting process over 2 which we as lawyers don't have any control, unfortunately.
3 We will certainly endeavor to do that, but I can't give you 4 a guarantee.
5 MR. LANPHER: Let me just add something to that 6 because it is public knowledge, it is a resolution of the 7 Suffolk County Legislatior. that in order to obtain 8 consultants for this proceeding we must gain the personal 9 approval of both the Presiding Officer and the Minority 10 Leader of the Suffolk County Legislature who then informs 11 the proper people and a contract can be let.
{} 12 Some of the recent designations were frankly hold 13 up through no one's fault, but it was over Thanksgiving and 14 some people were away, and getting the approvals, you just 15 physically cannot do it.
16 We set up this procedure to be as expedited as l 17 possible given that it is a government and we will do our i
l 18 very best, but especially around Christmas, and I don't know 19 what their schedules are, maybe we'll have to track them 20 down somewheke, we will do our best. But we would much l
j 21 prefer January 31.
22 I can represent that we are not holding up the 23 announcement of anyone for any kind of tactical reasons. I l
24 don't think anyone is doing that in this. We are going l /~%
l
(_) 25 absolutely as quickly as we can to designate people, and the l ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coserage 800-336-6646
- 11400101- 85 marysimons 1 ones that we designated in a letter this morning, we got the 2 formal notice last night at about 6
- 30 p.m., and within 24 3 hours after we've designated. We will continue to do that, 4 but there are real practical difficulties.
5 JUDGE FRYE: Well, I can understand your 6 difficulties, and my only practical suggestion would be to 7 assume the broadest possible scope and then designate based 8 on that and then you can always, you know, if it turns out 9 to be less than that, you can remove more easily than you 4
10 can add I would think.
11 MS. LETSCHE: It isn't so much when your order 12 comes out. It's in terms of designating witnesses, although
. (}
13 that's part of it, but even if counted on us going out and 14 trying to find witnesses now before we get your order, this 15 processes takes some time, but we'll do the best we can.
16 JUDGE FRYE: All right. Let's endeavor to do it 17 by the 24th.
18 MS. LETSCHE: I wonder if I could address one 19 other thing though. You had mentioned earlier setting a 20 date in your order for the completion of depositions and 2
21 that you would likely be setting that sometime in mid-22 January. I think that is not going to be workable and I 23 think that is too soon for a couple of reasons.
24 First of all, we are holding off on depositions
( 25 pursuant to your suggestion, and your order isn't going to ACE-FEDERAL REPORTERS, INC.
202 347 3700 Nationwide Coverage 800 336.M46
_ -_. -. - - , , . , .. . _ ._ ._ _ ,__ _ _ _ _- ~ _ _.
(_/ 11400101 86 marysimons 1 come out for even a week or ten days. That means we are 2 losing the eight depositions that we had scheduled for next 3 week that we are going to have to reschedule later, and 4 potentially, depending on when your order comes out, maybe 5 the additional nine or ten that are tentatively scheduled 6 for the following week, which means we would have those to 7 add to the ones that haven't been scheduled yet, which is 8 nine FEMA and four additional plus whoever else we are going 9 to be designating.
10 JUDGE FRYE: I'll tell you what, we will get the 11 order out so you can keep your deposition schedule for the
(} 12 week of the 15th.
13 MS. LETSCHE: Okay. Well that's fine. Even if 14 we got those eight or nine in, we are still talking about 15 well over -- when you have the additional eight, you are
?
16 talking over 30 depositions. We have been doing them two a 17 day, and two n>t simultaneously. That is physically 18 impossible for the governments, and I think Mr. Zahi._euter
( ,
19 will explain to you why it is impossible for him to be in t e 20 two places at once, but we have been doing two and three a 21 day, and even doing that you can't get that done between l 22 January 5th, which is basically when you finish with 23 Christmas, and the middle of January. That just is not 24 doable.
25 I think we have got to have a little recognition ACE-FEDERAL REPORTERS, INC.
202 047-3700 Nationwide Cmerage Rn336-6646
~
l l
l l
(~'t 87 l
(/ 11400101 <
marysimons l 1 of what human bo%ies are capable of doing here, and I think l 2 it has just got to be later than the middle of January to 3 get it done.
4 JUDGE FRYE: Mr. Cumming, were you on this 5 subject or was this on another subject?
6 MR. CUMMING: I have something to add, too.
7 JUDGE FRYE: Mr. Cumming has been trying to get 8 thic in fer while. So let's go to him and then we will come 9 back to you.
10 MR. CUMMING: You referring to the designation of 11 witnesses. FEMA counsel assumes you mean designation of
{} 12 sponsored witnesses. However, and this may be clarified by 13 forthcoming orders, FEMA assumes that there may be non-FEMA 14 sponsored witnesses that the intervenors wish to subpoena or 15 otherwise produce their testimony at trial.
16 The earliest possible designation of such 17 witnesses is requested by FEMA because of the peculiar 18 nature of how we have to go about providing those witnesses 19 and the fact that this anomalous. We have never been faced 20 with a situation where people may be called as fact 21 witnesses only as opposed to expert witnesses.
22 So I would hope that designation would mean that 23 it would include non-sponsored witnesses. If the 24 intervenors wish to compel testimony have before the Board
() 25 testimony from other persons who were there on the day of ACE-FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Cm erage 800-33&fM6
l p 88
' is) 11400101 marysimons 1 the exercise, we would like to know about it.
2 JUDGE FRYE: Do you contemplate subpoenaing 3 witnesses from FEMA for the hearing?
4 MS. LETSCHE: Frankly, it is a little hard to say 5 since we haven't been able to talk to any of them yet in 6 terms of deposition. It's certainly possible that that 7 might occur, but in good faith I can't tell you one way or 8 th9 other at this point.
9 JUDGE FRYE: Mr. Zahnleuter.
10 MR. ZAHNLEUTER: I would like to dispel the 11 notion that the State of New York is amenable to double
{} 12 tracking depositions, that is taking them simultaneously.
13 That is not a possible thing to do for just me. It has been 14 hard enough to, for example, double track at this time where 15 motions to compel are served on a State and-at the same time 16 the State is in Washington, D.C. in depositions and also at 17 this type of a conference.
18 In the week of December 15th there are six 19 depositions scheduled in two days, the 16th and the 17th.
20 That is difficult enough. But I would like to dispel the 21 notion that in January somehow I can spread myself between 22 two depositions at different places at the same time and 23 also prepare for those depositions and also keep up with 24 much of the other work that needs to be done in this case.
) 25 It comes down to a matter of due process, and ACE-FEDERAL REPORTERS, INC.
J 202-347-37m Nationwide Cos erage SW336-6M6
i l
l 1
l 11400101 89 marysimons I that is something that the State of New York will not 2 voluntarily give up.
3 JUDGE FRYE: Mr. Irwin.
4 MR. IRWIN: Judge Frye, just two or three quick 5 observations.
6 I hope very much that can stick to January 15th.
7 A month has all of the sudden been added to a discovery 8 schedule and it seems to me we should be able to live with 9 it.
10 Secondly, New York State is not the only party in 11 this case that has due process rights. LILCO does, too, it
(} 12 is almost a year now since this.one-day exercise was held.
13 Third, as the colloquy between Mr. Cumming and 14 Ms. Letsche just illustrated, one increasing concern of 15 LILCO's is that the general drift of this case is toward 16 whether the exercise process revealed a fundamental flaw in 17 FEMA and not in LILCO's emergency plan, and I think we've 18 got to bear that in mind.
I 19 There may come a time when we have to say enough 20 is enough on discovery and we are getting off into minutia 21 or into tangential areas. This is not an oversight hearing 22 into FEMA. It is an inquiry into whether LILCO did its job 23 on February 13, 1986. Enough said.
24 JUDGE FRYE: Mr. Bordenick.
25 MR. BORDENICK: I would like to add one ACE-FEDERAL REPORTERS, INC.
202 Mtionwide Coserage MG336-t646
. . . _ _ . _ _ _ _ . _ - . , . - _ __ _-347-3700__ _ _ _ - _ . _ _ _ . _
,n U 11400101 90 marysimons 1 observation with respect to the designation of witnesses. I 2 think the cut-off date that the Board has set should be 3 applicable across the board.
4 JUDGE FRYE: Oh, yes. I didn't think there would 5 be a question about that.
6 We will address all these schedule questions in 7 the order in ruling on the motions for reconsideration and 8 objection.
9 The other thing that I would add is that we had 10 contemplated a hearing beginning in mid-February, February 11 13th.
(} 12 (Laughter.)
l 13 Anything else?
14 'No response.)
15 Thank you very much.
16 (Whereupon, at 12:30 p.m., the meeting of counsel 17 in the above-entitled matter concluded.)
t i 18 * * * * *
- I
, 19 20 t
l 21 l
l 22 l
l 23 l
l 24
( 25 ACE-FEDERAL REPORTERS, INC.
202-M7-3700 Nationwide Cos erage 800-336-6M6
CERTIFICATE OF OFFICIAL REPORTER
-)
LJ 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 Plant, Unit 1)
DOCKET NO.: 50-322-OL-5 (EP Exercise)
PLACE: BETHESDA, MARYLAND DAT5: THURSDAY, DECEMBER 4, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
1 (sigt)
(TYPED) h MARY C. SIMONS Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation
.