ML20215E715
| ML20215E715 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/03/1986 |
| From: | Mark Miller KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY |
| To: | Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1923 OL-5, NUDOCS 8612230083 | |
| Download: ML20215E715 (12) | |
Text
14 KIRKPATRICK & I.OCKHART 1900 M STREET, N.W.
WASHINGTON D.C. 2004 DOCKETELu* mm et^CE USHRC Bost m.ure m TTLEPHONE QC2) 452 7000 tel71975-5400 1428 BRICKELL AVENLt j $ %h litil TELECOPIER CO2) 452 22
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COD-i }
~ (*i2H5mo BY HAND
. John H. Frye, III, Chairman Dr. Oscar H.
Paris Mr. Frederick J. Shon Atomic' Safety and Licensing Board U.S.
Nuclear. Regulatory Commission Washington, D.C.
20555 Re:
Docket No. 50-322-OL-5 (EP Exercise)
Gentlemen:
This letter supplements the December 1, 1986 letter from Karla J.-Letsche of this firm, which requested that a conference of counsel be convened to reevaluate the December 19 discovery 2
cut-off date and to deal with other discovery-related matters.
Yesterday, the Board notified this firm, and we in turn notified the other parties, that a conference of counsel would be held, as t
requested, in Bethesda at 2:30 p.m.,
on Thursday, December 4.
We appreciate the Board's prompt response to our request for a conference.
The sole purpose of this letter is to advise the Board in t
advance of the conference of an additional reason that it has become necessary to reevaluate the December 19 discovery cut-of f date.
On Tuesday, December 2, Mr. Richard Donovan, one of FEMA's witnesses in the Exercise proceeding, was deposed by the under-signed counsel for Suffolk County.
During that deposition, Mr. Donovan was instructed by Mr. Cumming, FEMA's counsel, not to answer any questions concerning either the Governments' admitted 4
Exercise contentions or the scope of Mr. Donovan's testimony at the Exercise hearings.
The undersigned counsel objected to
.Mr. Cumming's instruction but to no avail.
The deposition was, therefore adjourned with the Governments unable to conduct discovery on critical matters:
the witness' likely testimony and his opinions on the contentions.1 Copies of the appropriate l
The Governments did depose Mr. Donovan regarding his i
observations at the Exercise and his involvement as FEMA's lead (footnote continued) 8612230083 861203 PDR ADOCK 05000322 O
e KIRKPATRICK & LOCKHART
.j John H. Frye, III, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon Page 2-December 3, 1986 transcript pages from yesterday's deposition are attached for the Board's review.
In addition, after the deposition of Mr. Donovan had been adjourned,. counsel for FEMA, in response to questions from counsel for the County, advised that FEMA trial-designated witnesses Husar and McIntire would also be instructed not to answer any questions at their depositions, then scheduled for this Thursday and Friday, December 4 and 5, regarding either the Governments' contentions or the scope of their testimony on FEMA's behalf at the hearings.
Based upon FEMA's counsel's representations, counsel for the County advised FEMA and the other parties that, rather than waste the Governments' and other parties' time and resources, the depositions of Messrs. Husar and McIntire would likely be postponed until these matters had been resolved.- See attached transcript pages.
This morning, counsel for the parties were advised that, the scheduled depositions of Messrs. Husar and McIntire were being postponed.
It makes no sense to depose these gentlemen this week when they will not be permitted to answer questions about their forthcoming testimony.
The Governments intend to reschedule their depositions for a later date after this Board -- as the Governments submit it must -- instructs FEMA's counsel that proposed witnesses must be permitted to respond to the Govern-ments' clearly proper inquiries about their forthcoming testi-mony.
The forced postponement of these depositions, by the County in response to the position stated on the record by FEMA's counsel at Mr. Donovan's deposition, is in the Governments' view another reason that the December 19 discovery cut-off must be reevaluated and adjusted by the Board.
(footnote continued from previous page) controller at the Exercise.
However, this clearly is no excuse or substitute for FEMA's refusal to permit Mr. Donovan to be deposed about his forthcoming testimony.
KIRKPATRICK & LOCKHART ~
t
. John H.
Frye,'III, Chairman Dr. Oscar H.
Paris Mr. Frederick J. Shon Page 3 Decembe'r 3, 1986 I am authorized to state that the State of New York and the Town of Southampton agree with the views expressed herein.
Sincerely,
/Ilrlfct,i (. b' */hn (ks Michael S. Miller Enclosures cc:
NRC Staff'(by Hand)
William R.
Cumming, Esq. (by Hand)
Richard J.
Zahnleuter (by Hand)
LILCO counsel (by Hand)
Remainder of. Service List (by Mail)
f 17
.,j 1
a need for you to be present at the hearings to answer 2
questions?
3 A
Yes.
4 Q
And could you tell me, Mr. Donovan, why it-5 was determined that there may be such a need for you to 6
be present at the hearings?
7 MR. CUMMING:
If the witness has knowledge, 8
he may answer.
9 THE WITNESS:
I have no knowl' edge.
I was part of the management team that FEMA Region II utilized to 10 Prepare for, and conduct the exercise.
11 BY MR. MILLER:
(Continuing) 12 13 Q
Could you tell me, Mr. Donovan, what you j
14 would be testifying about on FEMA's behalf at these hearings -- upcoming hearings --
15 MR. CUMMING:
Objection, 16 MR. MILLER:
-- upcoming hearings on the 17 Shoreham licensing proceedings.
18 MR. CUMMING:
Objection.
The witness is 19 instructed not to answer.
20 BY MR. MILLER: (Continuing) 21 Q
Have you discussed with anyone, Mr. Donovan, 22
e q-18 1
what your testimony would involve at the hearings 2
regarding the Shoreham exercise?
3 MR. CUMMING:
Objection.
The witness is 4
instructed not to answer.
5 MR. MILLER:
What is the objection, Mr.
6 Cumming?
I asked if he had discussed with anyone 7
whether --
8 MR. CUMMING:
Attorney work product.
'9 MR. MILLER:
What is the attorney work to product?
I have asked --
11 MR. CUMMING:
Conversations with myself.
12 MR. MILLER:
He can state he had discussions 13 with you?
14 MR. CUMMING: Fine.
Let the witness so state.
MR. MILER:
Mr. Donovan, do you remember my 15 16 question?
17 THE WITNESS:
I had one discussion with Mr.
18 Cumming.
19 BY MR. MILLER:
(Continuing) 20 Q
Have you had discussions with anyone other 21 than the one discussion with !!r. Cumming?
22 A
No, I have not.
19
<i 1
Q Are you able today, Mr. Donovan, to tell me 2
what it is that you will be testifying about at the 3
hearings regarding the Shoreham exercise?
4 MR. CUMMING:
Objection.' The. witness is 5
instructed not to answer.
6 MR. MILLER:
What.is the basis of the objection?
7 MR CUMMING:
Attorney work product.
s 8
BY MR. MILLER:
(Continuing)
\\
F g
Q Mr. Donovan, do you have ar.? independent
\\
10 knowledge other than your conversation with Mr. Cumming, 11 the one conversation with Mr. Cumming, 'regarding the e
12 scope of what your testinony might. be at the Shorehgm exercise hearings?
4 13 3
\\
's s
MR. CUMMING:
Witness may answer that 34 t
5 question?
15 THE WITNES3:
No, I do not 16 s
N BY MR. MILLER:
(Continuing) i 37 Q
Is it fair to say, Mr. Donovan, ti, tat at this 18 19 time you are not in a position to state whethe you agree or disagree with any of the Contentions that have 20 been sWamitted by the Interveners in the licensing 21 pr ceeding regarding the Shoreham exercise?
22 S \\
4
\\
\\
s h
' l s
w
e 20 4
1 MR. CUMMING:
Witness may answer the question.
2 THE WITNESS:
Could you rephrase the question, 3
or restate it?
4 BY MR. MILLER:
(Continuing) 5 Q
Is it fair to state at this time that you are 6
not in a position to state whether you agree or disagree 7
with any of the Contentions that have been filed by the 8
Interveners in the Shoreham exercise proceedings?
9 A
Since I don't have a copy of the Contentions, 10 or had the opportunity to review them, I can't answer 11 that question.
12 Q
So, at this time you are not in a position 13 to have that discussion, is that correct?
14 A
Position to discuss my responsibilities as 15 part of the management team, documentation instructions, 16 conducted training classes up to, and during the exercise.
17 Q
So, you are here today to discuss with me 18 what you did at the day of the exercise as part of the 19 management team?
20 A
That is correct.
21 Q
And you are not here today to discuss with 22 me what you may, or may not say as a witness on FEMA's
21 1
behalf at the hearings?
Is that correct?
2 MS. McCLESKEY:
I object to the question.
3 I think you can ask your questions of Mr. Donovan and 4
find out what he knows about any of those matters.
5 MR. MILLER:
Is that correct, Mr. Donovan?
6 MR. CUMMING:
Does the witness remember the 7
question?
8 THE WITNESS:
Would you restate it?
9 BY MR. MILLER:
(Continuing) 10 Q
My question is:
Is it fair to say you are 11 not here today to discuss what you may or may not testify 12 about at the hearings regarding the Shoreham exercise?
13 MR. CUMMING:
Objection.
Counsel is 14 characterizing what the witness has testified.
The 15 witness may answer to the extent he has knowledge?
16 THE WITNESS:
I am prepared to answer any 17 questions concerning my responsibilities before and during 18 the exercise.
19 BY MR. MILLER:
(Continuing) 20 Q
As part of the FEMA Management Team, is that 21 correct?
22
1
.e I
22 y
1 A
Right.
+
2 MR. MILLER:
Mr. Cumming, I am going to note a
an objection for the record.
We have a witness here today
. 4-who has been designated by FEMA to be a witness, or a 5
Possible witness, one of the five you have designated 6
for the Shoreham hearings.
7 This witness is not being permitted to answer a
any questions about what he may, or may not know at this 9
time regarding the Contentions at issue in this proceeding, 10 under your instruction.
11 The purpose of this deposition is two-fold; 12 one, to explore with Mr. Donovan what he did to prepare 13 for and during the date of the FEMA exercise.
14 The second purpose of this deposition was 15 to explore with Mr. Donovan his ability to testify as 16 a witness on EEMAf s behalf.
You are precluding that 17 second exploration.
18 MR. CUMMING:
I can't characterize why you 19 asked for the deposition of Mr. Donovan, but you have 20 incorrectly stated for the record what has happened here 21 this morning.
And until the Contentions are resolved by 22 the Board, and FEMA knows what, in fact, is being litigated, i
. e-23 1
1 no witness will be in a position to testify.
I think we 2
have made that very clear in our filings.
3 MR. MILLER:
You are saying until the Board 4
rules, no witness FEMA witness will be in a position to 5
testify --
6 MR. CUMMING:
We don't know what is being 7
litigated, Mr. Miller, 8
MR. MILLER:
-- to testify at the deposition 9
about the Interveners Contentions.
10 MR. CUMMING:
That is correct, and our 11 position is very clear before the Board.
You are welcomed 12 to go to the Board and ask them for guidance.
13 If you would like to recess the~ deposition, 14 I will send Mr. Donovan home, and I will be happy to 15 do so.
16 MR. MILLER:
Well, we will be recessing this 17 deposition, but af ter I ask some questions.
18 MR. CUMMING:
Fine.
To the extent Mr.
1 19 Donovan has knowledge, I hope he will be helpful in 20 answering them.
21 MR. MILLER:
Given the beginning of this 22 deposition and where we stand right now, and the 4
--n..,..
c,
?
1, 1
MR. MILLER:
I want this on the record, 2
but' I am through with my _ questioning of the witness.
3 Mr. Cumming, we have scheduled Thursday Mr.
.4 Husar, and on Friday, Mr. McIntyre, both of whom have 5
been designated to be witnesses at the Shoreham proceedings.
6 I will ask you now, on the record, if it is 7
your intent to not permit those witnesses to. answer a
questions going to the scope of the testimony that they 9
may provide at the hearings?
10 MR. CUMMING:
That is correct.
k l'
11 MR. MILLER:
And I gather from that answer.
12 that you also then would object, and instruct those 13 witnesses not to answer questions going to the Contentions 14 that have been submitted by the Interveners in this 15 Proceeding?
16 MR. CUMMING:
That is correct.
17 MR. MILLER:
Given that representation, we 18 will seriously consider postponing the depositions of Mr.
19 Husar and Mr. McIntyre, and we will advise the parties 20 either this af ternoon or tomorrow morning what we are 21 going to do in that regard.
22 This deposition is over as far as.I am
I 2.
I concerned.
Mr. Donovan, we appreciate your time for 2
coming here today, and I also note for the record that 3
this deposition is adjourned, and there may be further 4
need for Mr. Donovan to come back once we have been 5
given documents that have been requested of FEMA's counsel.
6 We will have to make that determination once the documents 7
are received.
8 (Whereupon, the taking of the deposition 9
concluded at 1:00 p.m.)
10 11 12 13 14 15 16 17 18 19 20 21 22
_ _ _ _.. _