ML20215L086
| ML20215L086 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/05/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3371 OL-3, OL-5, NUDOCS 8705120096 | |
| Download: ML20215L086 (59) | |
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n LILCO, M y 5,1987 00f.KE TEP USNRC UNITED STATES OF AMERICA agy gggy -7 P4 ;52 NUCLEAR REGULATORY COMMISSION OFFfLE T b4 MY 00CKETum s 5 9 Vmi.
Before the Atomic Safety and Licensing Boards In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) Docket No. 50-322-OL-5 Unit 1) ) (EP Exercise)
MOTION TO LIMIT CROSS-EXAMINATION BY NEW YORK STATE AND SUFFOLK COUNTY This motion asks for action by both the Margulies Board (-03 reception centers remand proceeding) and the Frye Board (-05 exercise proceeding). LILCO hereby moves both Licensing Boards, pursuant to 10 C.F.R. SS 2.757, 2.718(e), and 2.7153, to limit cross-examination of New York State witnesses by Suffolk County attorneys, and of Suffolk County witnesses by New York State attorneys, as set forth below.
The precise relief requested is as follows:
- 1. With respect to all contested issues, Suffolk County should not be allowed to examine New York State witnesses (and New York State should not be allowed to examine Suffolk Courty witnesses) until af ter the cross-examination by LILCO, the NRC Staff, and FEMA; examination by Suffolk County counsel (or New York State counsel) should then be limited to the scope of the cross-examination by LILCO, the NRC Staff, and FEMA.
- 2. With respect to all contested issues, examination of State witnesses by County counsel (and of County witnesses by State counsel) should follow the rules for direct examination - for example, no leading questions.
8705120096 R
870505 ADOCK 05000322 PDR 12 ] 0 3 i
3 e
- 3. With respect to one particular set of issues (Contentions 15 and 16 in the
-05 proceeding), LILCO asks that the Intervenors be treated as a single con-solidated party, as explained in Section III below.
The basis for this motion is that there is ample reason to believe that Suffolk County lawyers have worked with New York State witnesses to prepare them for depo-sitions and to prepare written testimony. This joint preparation of their case makes it improper to allow the Intervenors' lawyers to cross-examine each other's witnesses. .To do so would allow them in effect to supplement their direct testimony without good cause and without notice to the other parties.
The evidence that Suffolk County lawyers have helped New York State witnesses prepare their case is the following:
- 1. Suffolk County attorneys met with State witnesses and State counsel on at least three occasions the day before depositions of the State witnesses to (a) prepare for the depositions and (b) apparently to plan State written tes- -
timony.
2.- Suffolk County lawyers have claimed the " joint counsel" attorney-client
+
privilege to prevent disclosure of their communications with State witness-es.
- 3. Suffolk County counsel has requested of LILCO certain technical traffic data, saying that without it his analyses could not be done. Yet Suffolk County has no witnesses who are traffic engineers; New York State does.
- 4. New York State written testimony appears to have been produced in Suffolk County counsel's offices.
- 5. Written testimony of state witnesses contains multiple cross-references to County testimony, and County testimony contains multiple references to State testimony.
3-Based on this evidence, LILCO believes it reasonable to conclude that Suffo'.k County lawyers have helped New York State witnesses prepare their testimony, and that, at the least, New York State witnesses (and presumably counsel) have had access to drafts of Suffolk County written testimony before it was filed. Certainly Suffolk County lawyers have met with New York State witnesses and discussed their testimony before filing it. Accordingly, Suffolk County lawyers should be limitec at hearing to what is essentially " redirect" examination following true " cross"-examination by LILCO, the NRC Staff, and FEMA.
I. Suffolk County And New York State llave Jointly Prepared Their Case The State and County have worked closely together in preparing their case. This is evident in both the -03 reception centers remand proceeding and the -05 exercise proceeding.
A. The -03 Proceeding
- 1. Suffolk County witnesses (and therefore presumably counsel) saw draf ts of New York testimony, and vice versa, before it was filed.
Five pieces of testimony on reception centers were filed by the Intervenors on April 13,1987:
For New York State: Paplie et al.
Hartgen and Millspaugh For Suffolk County: Cole et al.
Johnson & Saegert Radford et al.
The State testimony cites the simultaneously filed County testimony, and the County testimony cites the State testimony, a number of times. For example, Cole et al. cito State testimony at 10 n.3,11 n.4, and 18. Johnson and Sacgert cito State testimony at 7
4 and 19. Radford et al. cito State testimony at 27, 28, 30, 32, 33, and 35; indeed, Radford et al. " adopt" State testimony at 27 and " endorse" it at 28. Hartgen and Millspaugh cito County testimony at 17,19, and 37. Moreover, it appears from the typeface that New York State's written testimony was typed in the Washington, D.C.
offices of Suffolk County's counsel.
- 2. The State and County have shared evidence and the fruits of discovery.
The State and County have been sharing evidence and collaborating in discovery.
For example, Ilartgen and Millspaugh (written testimony p. 4) note that they were pro-vided photos by Suffolk County. Moreover, though Suffolk County has no witnesses qualified to do traffic analyses, the County took the lead on discovery as to traffic is-sues. For example, Suffolk County deposed LILCO's traffic expert; New York State counsel did not attend the deposition.N Suffolk County counsel later asked for the technical documents underlying LILCO's traffic analyses, saying "We cannot, of course, conduct an adequate review of KLD TR-201 without the underlying data." Letter from Christopher M. McMurray to James N. Christman, Apr. 2,1987, at 2. Yet Suffolk Coua-ty has no witness quallfled to review those data, and the only witnesses who address the technical aspects of the KLD analyses are State witnesses. Suffolk County counsel re-celved the requested data April 6,1986; State witnesses testified that the data were provided (to them, presumably) the same day (!!artgen and Millspaugh written testimo-ny at 10). IIence it would appear that Suf folk County counsel has been gathering infor-mation to provide to State witnesses.
1/ Counsel for New York did attend the deposition of the NRC's traffic expert, Dr.
Urbanik, but asked no questions,
, 3. The State and County are working together on testimony-related pleadings.
On April 17 LILCO received a motion to file rebuttal testimony filed by New York State. Like the State's testimony, the motion appears to have been prepared on the County's word processor, except for the list of names and addresses on the service list. Apparently the motion was prepared by Suffolk County counsel in Washington and shipped to Albany to be served from there by State counsel. Similarly, the State's re-sponses of April 30, 1987, to LILCO's motions to strike State testimony appear to have been prepared in Suffolk County counsel's office; clearly they were signed for the State by Suffolk County counsel and served from the offices of Suffolk County counsel.
- 4. State witnesses met with County counsel to discuss their testimony.
In preparation for their deposition on February 25, 1987, State REPG witnesses met jointly with State and County counsel. See Transcript of Deposition of James C.
Baranski, James D. Papite and Lawrence B. Czech, Feb. 25,1987, at 120 (Attachment 1 to this motion); Continued Deposition of James C. Baranski, James D. Paplie and Lawrence B. Czech, Feb. 25,1987, at 243-44 (Attachment 5 to this motion). While the witnesses would not characterize it as a meeting "directly with respect to the testimo-ny," it appears that this meeting was the first step in the process of preparing the State's written testimony.
Likewise, the State DOT witnesses indicated they had received documents to re-view from Suffolk County counsel, and they had met the day before their deposition with counsel for Suffolk County as well as counsel for New York State. Transcript of Robert C. Millspaugh, Charles E. Kilduff, David T. Ilartgen, Ph.D, and William J.
Acquario, Mar. 3,1987, at 14,83-84 (Attachment 2 to this motion). Also present at this meeting was a consultant that contributed to the State's written testimony (see Attach-ment 2 at 85).
If, contrary to appearances, Suffolk County did not participate in preparing or reviewing draf t State testimony; if the State testimony was not typed in the Washington, D.C. offices of Suffolk County counsel; and if Suffolk County counsel did nol discuss the State testimony with State witnesses before the testimony was flied, then the Intervenors will certainly say so in their response to this motion. But if these things did occur, then the State and County should not be allowed to supplement their direct case by " cross-examining" each other's witnesses.
B. The -05 Proceeding As in the -03 proceeding, the -05 counsel for Suffolk County and New York State have been jointly meeting with witnesses and claiming the attorney-client privilege to shield their meetings from discovery. This occurred, for example, at the deposition of Intervenor witness Frank Petrone on December 15,1986 (see Attachment 3 to this mo-tion). Mr. Petrone was represented at his deposition by counsel for New York State.
Since then he has been employed by Suffolk County as County Executive Assistant.
Likewise, the day before their deposition on February 3,1987, State witnesses Baranski, Papile, and Czech met with counsel for both the State and County for per-haps 3} hours. See Transcript of Deposition of James Conrad Baranski, James Dominic Papile and Lawrence Bruno Czech, Feb. 3,1987, at 195-96 (Attachment 4 to this mo-tion). During the February 25 deposition of State witnesses Haranski, Papile, and Czech, counsel for the State and County claimed " joint counsel privilege" to prevent disclosure of discussions at meetings attended by State witnesses and County lawyers.
See Transcript of Deposition of James C. Baranski, James D. Papile and Lawrence B.
Czech, Feb. 25,1987, at 244 (Attachment 5 to this motion).
II. The Remedy it has long been the case (and Intervenors make no secret of it) that the State and County have collaborated on the presentation of their case. The State of New York
. has not taken a position different from Suffolk County's since before 1984. Most of the Intervenors' pleadings have been joint ones. Most appear to have been prepared in the offlees of Suffolk County's Washington, D.C. counsel. Most of the State counsel's signa-tures have been signed by Suffolk County's lawyers. Most papers filed on behalf of the State have been served by Suffolk County counsel.
Intervenors will no doubt protest that there is nothing improper in two parties collaborating. That is true enough, so long as the collaborators do not at the same time take advantage of their separateness. But that is precisely what is happening in this case when it comes to cross-examination.
Cross-examination gives the cross-examiner certain undoubted privileges. For example, he may ask leading questions. More important, having " friendly" witnesses presented by another party offers decided advantages.U If the lawyer for one party is allowed to consult with another party's witness beforehand, then his " cross"-
examination of that witness will be risk-free; indeed,it can be carefully orchestrated.E Intervenors are trying to have the advantages both of cross- and of direct examination It the same time.
NRC rules call for a party's direct testimony to be reduced to writing and served on the other parties at least 15 days before hearing. 10 C.F.R. 5 2.743(b). At hearing ordinarily only cross-examinationM on the written direct testimony takes place 2/ The Laurenson Board expressed its disapproval of what it called " sweetheart" cross-examination. Tr. 3770-71. See also Transcript of March 17,1987, in the -05 pro-cceding, Tr. 1242-45, especially Tr. 1244-45 (Judge Frye observes that it is difficult to justify using cross-examination in this situation).
3/ For example, during the litigation of Contention EP 67 (bus evacuation traffic),
counsel for New York Stato during " cross-examination" invited a Suffolk County wit-ness to criticize a LILCO witness's testimony. Tr. 8222-23; 8229-30. These questions by State counsel elicited what was for all practical purposes rebuttal testimony by a Coun-ty witness.
y Cross-examination is ordinarily limited to the scope of the direct testimony, llouston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-799,21 NRC (footnote continued)
, (followed by redirect). Cross-examination, of course, is designed to probe the weak-nesses in a hostile witness's testimony, not to bolster and supplement a friendly wit-ness's testimony.5/ When a party is allowed to " cross-examine" on direct testimony that he had a hand in preparing, he is in reality offering additional direct testimony -
direct testimony that was not served on the other parties.
The appropriate remedy is for these Boards to issue an order limiting cross-examination. Suffolk County should not be permitted to " cross-examine" New York State witnesses. Suffolk County lawyers should be permitted only to engage in what is essentially redirect examination, following and within the scope of the true cross-examination by LILCO, the NRC Staff, and FEMA. The same rule should apply for New York State examination of Suffolk County witnesses.EI LILCO does not go so far as to ask, at this time, that New York State and Suffolk County be consolidated under 10 C.F.R. S 2.715a, though the Board's authority to take such action cannot be denied. "By Commission rule and policy, consolidation of (footnote continued) 360, 378 (1985); Loulslana Power __& Light Co. (Waterford Steam Elec. Station. Unit 3),
ALAB-732,17 NRC 1076,1096 (1983).
5/ See Tr.14,917, where Judge Laurenson said that, as to a witness who was an em-playee of the State of New York, counsel for New York's questioning should be charac-terized as redirect examination rather than cross-examination.
$/ Intervenors may argue that they are entitled to make their case by cross-examination, citing Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-75-1,1 NRC 1, 2 (1975) (intervenors are entitled to cross-examine on those portions of a witness's testimony in which they have a discernible in-terest), and Tennessee Valley Authority (llartsville Nuclear Plant, Units 1A, 2A,18, &
28), ALAB-463, 7 NRC 341, 356 (1978), motion for reconsideration on other grounds denied. ALAB-467, 7 NRC 459 (1978) (intervenor may build his case on the basis of cross-examination). But even in Prairio Island the Commission noted that the inquiry must be " strictly confined to the scope of the direct examination in order to insure that it does not have the effect of expanding the boundaries of the contested Lsues." 1 NRC at 2 (footnote omitted). Moreover, neither of these cases addressed the issue of what is really additional direct examination in the guise of cross-examination.
. Intervenors with the same interest is acceptable and encouraged, providing, of course, that no undue prejudice results." Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-808, 21 NRC 1595,1601 (1985), citing the CommLssion's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452,455 (1981).E In-stead, LILCO asks as a general matter for only the much more limited relief set out above.
III. A Special Case: Intervenor Testimony On Contentions EX 15 And 16 In The -05 Proceeding In one limited case, however, LILCO does request consolidation, because Suffolk County and New York State have voluntarily consolidated themselves already; that is in their testimony on Contentions EX 15 and 16 in the -05 proceeding.
The " Direct Testimony of James C. Baranski, William Lee Colwell, Lawrence B.
Czech, Gregory C. Minor, James D. Paplie Charles B. Perrow, Frank R. Petrone, and liarold Richard Zook on Behalf of the State of New York and Sultalk County Regarding Contentions EX 15 and 16 -- the Scope of the Exercise"(Apr. 6,1987) is combined testi-many of both State and County witnesses:
7/ See also Georgia Power Co. (Vogtle Nuclear Plant, Units 1 & 2), LBP-84-35, 20 NRC 887, 916 (1984) (where different intervenors had virtually identical contentions, the Board suggested that they voluntarily consolidate efforts, which consolidation might obviate the need for a Board order); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-83-29A,17 NRC 1121,1130 (1983)(since information and interests of two intervenors were identical, Board consolidated them and designated a lead interve-nor); Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-83-28,17 NRC 987, 993-94 (1983) fBoard declines to order consolidation because intervenors did not have similar interests but said it would not permit duplicative questioning); Cincinnati Gas &_ Elec.
Co (William 11. Zimmer Nuc! car Station), LDP-80-19,12 NRC 67, 75 (1980) (Board ex-pects parties sponsoring similar or duplicate contentions to attempt to agree on a lead intervenor); Metropolitan Edison Co. (Three Mlle Island Nuclear Station, Unit 1) LDP-79-34,10 NRC 828,856 (1979)(in the event a voluntary approach to designating a lead intervenor or the like was not found, the Board said it would take mandatory consolida-tion measures).
Q. Do you appear jointly as witnesses for Suffolk County and New York State?
A. Not exactly. Messrs. Papile, Czech, and Baranski appear on behalf of New York State; Messrs.
Colwell, Minor, Perrow, and Zook appear on behalf of Suffolk County; and Mr. Petrone appears on behalf of both the State and County. . We have combined our testimony because the points we make are interrelated.
Direct Testimony of James C. Baranski . . . Regarding Contentions EX 15 and 16. . . at
- 11. Thus one of the Intervenors' witnesses, Mr. Petrone, is sponsored jointly by both the State and County, and all the witnesses are presenting a combined case. Indeed, many of the answers in the testimony are jointly sponsored by State and County witnesses (see, e_&, pages 11, 16, 24, 27, 28). In these circumstances the Intervenors should be deemed to have voluntarily consolidated themselves, and the following rules should apply:
- 1. The Intervenors should designate a ringle spokesman to defend the Interve-l nor witnesses (that is, to make any objections to questions by LILCO, the NRC Staff, and FEMA).
- 2. The Intervenors should designate a single spokesman to cross-examine other parties'(LILCO, the NRC Staff, and FEMA) witnesses on Contentions EX 15 and 16.EI
- 3. Counsel for the County and State should not be allowed to " cross"-examine l
l the witnesses on the jointly filed testimony; the single Intervenor spokes-man should be limited to redirect examination within the scope of the
! other parties'(LILCO's, the NRC Staff's, and FEMA's) cross-examination.
8/ The manner of questioning of the joint Intervenor witness panel on contentions l
15 and 16 arose in passing in discussion at the hearing on April 29 on the issue of scheduling those witnesses' testimony. At that point Mr. Zahnicuter, in answer to a question by the Board, indicated that he did not know how long his questioning of LILCO's witnesses, if indeed he had any questions, would take. Tr. 4334-35 (Attach-ment 6). LILCO submits that since New York State and Suffolk County have in fact consolidated its presentation with that of Suffolk County on these contentions, ques-tioning of LILCO's witnesses by Intervenors on these contentions should also be consoll-dated.
. Respectfully submitted, I
t). A b C w J Donald P. Irwin James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: May 5,1987 Attachments: 1 -- Deposition of James C. Baranski et al.,
Feb. 25,1987, at 120 2 -- Deposition of Robert C. Millspaugh et al.,
Mar. 3,1987, at 9,14-15,83-87 3- Deposition of Frank Petrone, Dec. 15, 1986, at 160-84 4 -- Deposition of James Conrad Haranski et al.,
Feb. 3,1987, at 195-96 5 -- Continued Deposition of James C. Baranski eM., Feb. 25,1987, at 243-45 6 -- Tr. 4334-35 (-05 proceeding)
Attcchment 1 TRA.N.SCluPr OF PRDCHEDINGS UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
- - - - - - - - - - - - - - - - - - -x In the Matter of: :
- Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY : (Emergency Planning)
(Shoreham Nuclear Power Station, a Unit 1)
. . . . . . . . .x DEPOSITION OF JAMES C. BARANSKI, JAMES D. PAPILE and LAWRENCE B. CZECH Albany, New York Wednesday, February 25, 1987 ACE-FEDERAL REPORTERS, INC.
Sterwtypr Ravrtm 44 Nonh CapttelStreet n D.C. 20001 WashinI)
(20 34~-3700 Nationwide Cowra6' 800-336 6646
9941 02 02 120 r ysimons 1 0 Have you gentlemen had any meetings to discuss 2 your impending testimony on the' reception center issues in 3 the Shoreham case?
4 A (Witness Papile) We have not had a meeting 51 directly with respect to the testimony. We had meeting l
6 ! yesterday on the three documents that we have. .
I !
7 0 And that's the only meeting you've had ---
8 3 A That's the only meeting we've had on the I I i 9 reception conters.
10 ,
A (Witness Czech) That's correct. ,
! l 11 ! A (Witness Baranski) That's right. ,
i 12 j 0 '
That was also the only meeting you had to i i i 13 i discuss this particular deposition, meaning this ,
14 af ternoon's deposition in the reception center proceeding; 15 is that right?
r .
16 A (Witness Papile) That's true.
l 17 A (Witness Baranski) That's correct.
18 A (Witness Czech) That's correct. I 19 0 Did you have any phone conversations about your 20 impending testimony on reception centers?
l 21 A (Witness Papile) I had one phone conversation t
22 with my counsel.
t ACE. FEDERAL REPORTERS INC.
202 347.)?00 Nationwide Coseuse 300.))46444
~
Attcchm:nt 2
~
TRAXSCluP1 CF PROCHEDINGS UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
- - - - - - - - - - - - - - - - - - -x In the Matter of: :
- Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY : (Emergency Planning)
(Shoreham Nuclear Power Station, a Unit 1) a
- - - - - - - - - - - - - - - - - - -x
. DEPOSITION OF ROBERT C. MILLSPAUGH, CHALRES E. KILDUFF, DAVID T. HARTGEN, Ph.D., and WILLIAM J. ACQUARIO Albany, New York Tuesday, March 3, 1987 ACE-FEDERAL REPORTERS, LNC.
siewtyn nennm 444 Nonh Capitol Street Washington, D.C. 20001 (202) 347-3700 Nationwide Coverage 800-336-6646
9 1 testifying before the NRC on the reception centers 2 under the Shoreham plan. Has any of the four of you
- 3 developed any opinions about the suitability of those 4 reception centers?
5 Dr. Hartgen?
, 6 DR. HARTGEN: We have.just begun the process of I'
7 looking at this information. We have looked at some 8 of the questions related to traffic around the 9 reception centers, the routes between those centers 10 at the EPZ. We have reviewed material that has been 11 provided to us; so beginning the process of' forming 12 opinions.
13 MR. CHRISTMAN: What material has been provided 14 to you? Describe it as best you can recall.
15 DR. HARTGEN: We have portions of the plan 16 itself, as we stated, those portions relating to i 17 operation of the sights, and also of the traffic 18 analysis by a firm known as XLD, I believe.
19 Third item we have is a document referring to 20 procedures. I think it's a portion of a document 21 referring to procedures about the operation of the Jack w. hunt and associates, Inc.
14 1 containing these materials?
2 MR. KILDUFF: I believe it came from Dr.
3 Hartgen's office.
4 MR. CHRISTMAN So, Dr. Hartgen's office sent a 5 copy of this material to you, Mr. Kilduff?
. 6 MR. KILDUTT: To my office.
7 MR. CHRISTMAN: To your office, I see. And who 8 handed the package to you?
9 MR. KILDUFF: My supervisor.
10 MR. CHRISTMAN: I see, okay. And Dr. Hartgen, 11 whom did you get these materials from? ,
12 DR. HARTGEN: I received it from Mr. McMurray.
13 MR. CHRISTMAN: All right. And Mr. Acquario, how 14 did you come by these materials that you looked at?
15 MR. ACQUARIO: Through Dr. Hartgen.
16 MR. CHRISTMAN: So, Dr. Hartgen, you were sort of 17 of the central person who got the documents first and 18 then distributed it to the other three witnesses?
19 DR. HARTGENs Yes.
20 HR. CHRISTMAN: And I guess, Mr. Millspaugh, '
21 that's the consensus with your experience?
_ _ _ _ - - - - - - . - - - - - - - - - _ - - - - ---------- l**k *' D a d a M tes,Inc.
15 1 MR. MILLSPAUGH: Yes.
2 MR. CHRISTMAN: Dr. Hartgen, have you any 3 concerns or criticisms, however preliminary they 4 might be, about the plan to use these three 5 facilities as reception centers?
i
. 6 DR. HARTGEN: As I indicated earlier, we have 7 just begun the analysis. Our preliminary concerns 8 relate to a number of subject areas. Our concerns 9 are primarily in the form of questions asked. We 10 have not answered the -- answered the issues in 11' enough detail to determine whether the concerns are !
12 warranted, but our preliminary reading relates to, as 13 I say, concerns of a number of subjects.
14 We have concerns about the capacity of the roads 15 between the zone, EPZ, that is, and the sites to 16 carry additional traffic. We have other concerns 17 about the ability of intersections around the sites 18 to handle traffic. We have concerns about 19 circulation of vehicles on the sites themselves. We t
20 have some concerns about the plans for the use of 21 buses, and we have additional concerns about Jack w. hunt and associates, Inc.
83 1
better instructions on how to traverse some of the 2 rural routes.
3 MR. CHRISTMAN: And you gave them those 4 instructions by radio?
i 5 MR. ACQUARIO: Yes.
6 MR. CHRISTMAN: How many drivers do you remember 7 got lost, roughly?
8 MR. ACQUARIO: I can't remember exactly.
9 MR. CHRISTMAN: Roughly.
l 10 MR. ACQUARIO: Ten percent. I mean two out of l
11 twenty.
12 MR. CNRISTMAN: Best you can do?
13 MR. ACQUARIO: Yeah.
i 14 MR. CHRISTMAN: Okay. Have you all had any 15 meetings to either discuss this deposition or your
! - 16' testimony in this proceeding with anyone? I mean any l
17 one of you with anyone else.
18 MR. ACQUARIO: Apart from people in this room?
19 MR. CHRISTMAN: No, including the people in this 20 room. It's okay for me to ask that question.
21 Mave you had any meetings with Rick Zahnleuter, Jack w. hunt and associates, Inc.
84 1 for instance?
2 MR. ACQUARIO: Yes.
3 MR. CNRISTMAN: And when was that?
4 MR. ACQUARIO: Yesterday.
5 MR. CHRISTMAN: Yesterday afternoon?
, 6 MR. ACQUARIO: Right.
7 MR. CHRISTMAN: And who were the people present 8 at that meeting?
9 MR. ACQUARIO: Just who's here.
10 MR. CNRISTMAN: In other words, Mr. Mc Murray, 11 Mr. Zahnleuter, and the four witnesses I see in front l2 of me?
13 MR. ACQUARIO: Yes.
14 MR. CNRISTMAN Mho else?
15 MR. ACQUARIO: Other staff. .
li' MR. CNRISTMAN: Other staff of the Department of 17 Transportation?
18 MR. ACQUARIO: Yes.
19 MR. CHRISTMAN: Who were they?
, 20 MR. ACQUARIO: I don't know their names.
21 DR. MARTGEN: I can give you their names. My
_ . . _ ____ Z _ _ _ _ NW hunt 9- OfMI 8880808088. Inc. -_-- - - - - - - -
85 1 staff people and other groups who were working on the 2 project: John Shufon, S-N-U-F-O-N; two of his 3 assistants; another gentleman by the name of Kirsch, 4 K-I-R-S-C-H; another gentleman by the name of Lewis, 5 L-E-W-I-S; a gentleman by the name of Fifield, F-I-F 6 -- F-I-F-I-E-L-D; and a gentleman by the name of 7 Manning, M-A-N-N-I-N-G, who is associated with the 8 firm of Roger Craghton Associates, Inc. I believe 9 that was everyone.
10 MR. CHRISTMAN: Does anyone else have any 11 additional people they can remember?
12 MR. ACQUARIO: Bill Kneelands.
13 DR. HARTGENs Oh, yes, Mr. Kneelands.
14 MR. ACQUARIO: He's on my staff.
15 MR. CHRISTMAN: Other than Mr. Kneelands and the 16* people on'your staff, Dr. Hartgen, were any of those 17 names you mentioned not in those two categories that 18 is not on your staff? I guess Craghton Associates 19 was an outside consultant.
20 DR. HARTGEN: Yes, other than that --
21 MR. CHRISTMAN: In other words, were all the Jack w. hunt and associates, Inc.
o 86 1 people in the room either Craghton Associates or Mr.
2 Kneelands or on your staff, Dr. Hartgen?
3 DR. HARTGEN: Yes, yes.
4 MR. ZAHNLEUTER: And counsel.
5 MR. CHRISTMAN: And counsel, of course. And 6 Craghton Associates' expertise is what?
7 DR. HARTGEN: We are asking for some assistance 8 in traffic engineering capacity.
9 MR. CHRISTMAN: Is it in the nature of analysis 10 or in the nature of collecting data?
11 DR. HARTGEN: Mostly analysis.
12 MR. CHRISTMAN: And what have you asked them to 13 do?
14 DR. HARTGEN: They will be assisting, and under 15 my direction, they will be analyzing questions we 16 referred to earlier.
17 MR. CHRISTMAN: I'll ask you to list those 18 questions because we talked about so many. I want to 19 make sure we are talking about the same thing.
20 DR. HARTGEN: Routing between Shoreham and the 21 sites, intersection capacity, site circulation, and Jack w. hunt and associates, Inc.
87 1 -
period.
2 MR. CHRISTMAN: And you will use their work to 3
prepare your -- to help you prepare your testimony?
4 DR. HARTGEN: I'm not sure I'd phrase it that 5 way.
6 MR. CHRISTMAN: Use your own words then.
7 DR. HARTGEN: We will ask them to do assessments 8 cf various questions and they will do them.
9 MR. CHRISTMAN: Where are Craghton Associates 10 located, did you say?
11 DR. HARTGEN: They are at, I believe, 254 12 Delaware Avenue in Delmart New York.
~
13 MR. CHRISTMAN: They are the only outside 14 consultant that you plar. to use to hcip with these 115 analyses?
16' DR. HARTGEN: We may ask others. They are the 17 only one we have talked with so far.
18 MR. CHRISTMAN: Do you expect you will be 19 calling others?
20 DR. HARTGEN: Can't say.
21 MR. CHRISTMAN: You don't know?
jack w. hunt and associates, inc.
Attachment 3 TIR ~SCluF1 OF PRDCEEDE ~GS UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In the Matter of: :
- Docket No. 50-322-OL-5 LONG ISLAND LIGHTING COMPANY :
(Shoreham Nuclear Power Station, .'
Unit 1) ,
- - - - - - - - - - - - - - - - - - - -x DEPOSITION OF FRANK PETRONE New York, New York Monday, December 15, 1986 ACE-FEDERAL REPORTERS, INC.
Stewtyiv k,vrt:rs 444 North Capitol Street l
! Washin$. ton, D.C. 20001 (20.) 347-3700 Nationwide Coverage 800-336-6646 I
r 160 o i 1 Q. With whom did you meet last week?
u 2 A. Ms. Letsche, Mr. Zahnleuter and Mr.
3 Palomino.
4 Q. Where did that meeting take place?
5 A. In Mr. Palomino's office.
6 Q. What day of last week?
7 A. It was on Friday.
8 Q. December 12; is that correct? '
9 A. I believe so.
10 Q. Did you review contentions 15 and 16 11 at that time?
12 MR. ZAHNLEUTER: Objection.
1- 13 MR. D A V I E.S : On what grounds?
14 MR. ZAHNLEUTER: On the grounds that 15 that subject is covered by attorney work product 16 and attorney / client privilege. That is the nature 17 of the discussion of our conversations and I will 18 instruct Mr. Petrone not to answer.
19 MR. DAVIES: Mr. Petrone has 20 testified 'that present at the meeting was not only 21 yourself and Mr. Palomino but also Ms. Letsche, 22 who represents not Mr. Petrone or New York State.
23 Thus any communication occurring in her presence g 24 is a communication which is not protected by the 25 attorney / client privilege.
. 161 1 Q. Did you review contentions 15 and 16 2 at this meeting?
3 MR. ZAHNLEUTER: Do.not answer. I am 4 comfortable with the position that I hav'e taken 5 and that subject matter may not be inquired into.
6- You may ask about the extent of his analysis, what.
7 his opinion may be, if he has formed one, but you 8 may not ask the subject matter of any discussions 9 with counsel.
10 Q. Was Ms. Letsche present throughout 11 your meeting last Friday? .
12 A. Yes.
13 Q. Did Ms. Letsche-ask you questions?
14 A. No, I don't believe she did.
15 Q. Did she communicate with you at all 16 orally?
17 A. We discussed the object, basically.
18 What we really discussed was the scope of 19 testimony and the type of activity that I would be 20 involved in, because I have no familiarity with 21 this process, nor was I ever involved in a hearing 22 process, and I think it was at my discretion that 23 I wanted some introductory types of opportunities
, ,. 24 to look into what would be taking place here today 25 and the future.
.- 162 ng 1 Q. Was Ms. Letsche present during the 2 meeting when you spoke?
3 A. Yes, I would say yes.
4 Q. What did you say at the meeting in 5 Ms. Letsche's presence?
6 A. I can't recall.
7 MR. ZAHNLEUTER: Objection. I 8 instruct him not to answer.
9 MR. DAVIES: What grounds?
10 MR. ZAHNLEUTER: Attorney / client
{
11 privilege and attorney work product.
- 12 MR. DAVIES
- Attorney / client 13 privilege attaches to confidential communications 14 between counsel and his client. The presence of a 15 third party during the course of such 16 communication negates any finding of 17 confidentiality with respect to those 18 communications and thus loses for the client the 19 protection of an attorney / client privilege.
20 MR. ZAi!NLEUTER: This was a 21 confidential communication. I have researched the 22 issue. I am comfortable with the position I have 23 taken and I am not prepared to change it now.
r f , 24 MR. DAVIES: Is it your intention to 25 persist in objecting to any inquiry concerning
/
.- 163
-. I what occurred at the meeting and communications 2 and statements made at the meeting which occurred 3 last Friday in the presence of Ms. Letsche?
4 MR. ZAHNLEUTER: I think I have
, 5 already allowed you some inquiry and further 6 inquiry along the lines of subject matter of
{
7 discussions I will not allow.
8 MR. DAVIES: Do you take the position 9 that Ms. Letsche's presence at that meeting was in 10 a role as counsel for Mr. Petrone?
11 MR. ZAHNLEUTER: I have stated my 12 position and I don't wish to engage in further 13 discussions or characterizations about 14 Ms. Letsche's role.
15 MR. DAVIES: I think it is important 16 because we ultimately will have to seek a ruling.
17 MS. LETSCHE: Maybe I can clarify as 18 to what my role was. As you well know, Suffolk 19 County and the State of New York do have certain 20 mutual interests in the Shoreham proceeding and in 21 fact have jointly filed contentions as to which 22 Mr. Petrone has been identified as a witness.
23 Therefore my participation in that
,, 24 meeting insofar as it involved discussions 25 concerning Mr. Petrone's testimony was in the
164
~
1, i 1 context of the mutually held position in this 2 proceeding that is held by both suffolk County and 3 New York and therefore revelation of discussions
~
4 of counsel concerning that meeting are protected 5 by the attorney work product doctrine.
6 MR. DAVIES: Do I understand that you 7 are asserting a joint interest privilege on behalf 8 of both New York State and Suffolk County?
9 MS. LETSCHE: With respect to the 10 subject matter of potential testimony concerning
-11 jointly sponsored contentions, conversations-12 between attorneys on those subjects would reveal t
13 attorney opinion and thought processes and 14 therefore.are covered by the attorney work product i
15 privilege in the context of a joint defense type 16 situation.
17 MR. DAVIES: Do I understand that 18 based on what you say Mr. Petrone is a witness who 19 is also sponsored by or appearing on behalf of the 20 county?
21 MS. LETSCHE: No. Mr. Petrone is 22 appearing as a witness sponsored by the State of 23 New York. However, as I understand it, he intends
., 24 to be restifying in support of contentions which 25 are sponsored, the contentions, that is, by both
165 f3 1 Suffolk County and the State of New York and also 2 by the Town of Southampton. Therefore the subject 3 matter of his testimony does also support the 4 position of Suffolk County and therefore 5 conversations between Mr. Zahnleuter and myself 6
concerning that subject matter are protected by 7 the attorney work product privilege.
8 MR. DAVIES: So I am clear and the 9 record is clear when a ruling is sought, your 10 presence at the meeting which occurred last Friday 11 attended by Mr. Petrone was as counsel for Suffolk 12 County and the assertion of a privilege is 13 premised upon the existence of what is alleged to 14 be a joint interest privilege shared by New York 15 State and Suffolk County in this proceeding?
16 MS. LETSCHE: I attended that meeting 17 in my role as counsel for Suffolk County and the 18 basis of the objection has been stated by Mr.
19 Zahnleuter and I have explained to you what the 20 position is.
21 MR. DAVIES: I am not going to delay 22 this proceeding by pursuing other questions. I do 23 want to make it clear that it is our position that 1, ,j 24 we are entitled to inquire fully into all 25 communications that occurred in the course of that
166 I i 1 meeting and all activities which occurred, 2 including what documents were viewed by the 3 witness, what statements were made to him by 4 others present at that meeting and that I reserve 5 our rights to pursue a complete line of inquiry 6 into those areas, which I assume would be met by 7 an objection premised on this joint interest 8 privilege at this time. Is that correct?
9 MR. ZAHNLEUTER: What is correct is 10 what I have stated previously and I don't wish to 11 restate it.
12 MR. DAVIES: Am I' correct that if I 13 pursue questions I would be met by an objection 14 and a direction to this witness not to answer to 15 the extent that those questions seem to elicit 16 information concerning what he did and what was 17 said by anyone at the meeting last Friday to which 18 we have referred?
19 MR. ZAHNLEUTER: That is correct.
20 MR. DAVIES: Then I think that I will 21 not belabor the issue and we will seek an 22 appropriate ruling and pursue the matter.
23 I would like the reporter to mark --
r
. ;.,g
. 24 MR. IRWIN: I will add 25 parenthetically on the record that by making it
.m 167
/* 1 impossible for us at this point to inquire into 2
the discussion at that meeting, you are requiring 3 us in order to obtain meaningful discovery, as we 4
are entitled under the board's outstanding order, 5 to require Mr. Petrone to outline his intended 6
testimony with respect to each and every sub-part 7 of 16, and 16 based upon his qualification as an.
8 expert witness.
9 MS. LETSCHE: I am not sure what the 10 connection is from the earlier part of your 11 statement to the end.
12 MR. DAVIES: Do you have for your use 13 a copy of the contentions?
14 MR. ZAHNLEUTER: Yes.
15 MR. DAVIES: Do you have a copy, Ms.
16 Letsche?
17 MS. LETSCHE: Yes.
18 MR. ZAHNLEUTER: I should clarify i
19 what version of the contentions you have in mind.
20 MR. DAVIES: I have the contentions I 21 believe as they were filed.
22 MR. IRWIN: As I understand it, 23 contention 15 as it currently exists is as it was
- , 24 filed except for sub-part J, which was stricken, 25 and thct contention 16 remains as it was filed but
168 e .i . 1 for sub-part M, which was stricken.
L 2 MR. DAVIES: I ask the reporter to 3 mark as Exhibit T copies of contentions 15 and 16, 4 and I invite counsel to look at the exhibit as 5 marked and make a comparison between that and the 6 contentions.
7 (Petrone Exhibit T marked for 8 identification, as of this da te. )
9 Q. Do you have Exhibit T before you?
10 A. Yes, I do.
11 Q. With respect to contention 15, which 12 begins on the first page of the exhibit which is-t L 13 page No. 16 and continues to page 25, I would just 14 like to ask you to state now on this record what, 15 other than that which is reflected in the exhibit 16 before you and the contentions themselves, you 17 would intend to state with respect to these 18 contentions in your testimony in this proceeding.
I 19 A. I haven't even had a chance to study 20 this or.even to begin writing testimony. I can't 21 answer that.
22 Q. Is it your testimony that at this 23 time you have not determined upon the testimony r
I, 24 you will give with respect to contention 15?
25 A. I haven't done any work with regard
169 1 to the testimony that I would be giving relative 2 to contention 15 and 16. I have reviewed it,
- 3 period.
4 Q. So at this time you cannot tell us i
5 what, if anything, you would say with respect to 6 contentions 15 and 167 7 A. ,No, I will not state anything because 8
I haven't had a chance to study it and to really 9 start developing the testimony that I would feel 10 comfortable with, 11 Q. Your answer refers to 16 also?
12 A. Yes, as I said, I reviewed this twice.
13 I just read it over.
14 Q. Just so the record is clear, you are 15 not able to state here today what testimony, if 16 any, you would give in this proceeding with 17 respect to those matters set forth in contention 18 15 and with respect to those matters set forth in 19 contention 16?
20 A. That is correct.
21 Q. When were you first approached or 22 asked to be a witness in this proceeding?
23 A. Approached about two months ago. ;
,, 24 Q. By whom?
25 A. Mr. Zahnleuter.
s 170 773 1 Q.
L Had you spoken with anyone at any 2
time from April up until approximately two months 3
ago concerning the possibility that you would 4 testify in this proceeding?
5 A. I spoke to many people after I 6
resigned and there was much speculation by several 7
people in terms of well, Mr. Petrone, maybe you 8
will be a witness, maybe you will not be, in terms 9
of the outcome of what is going to happen at 10 Shoreham. If I had a nickel for every question I 11 have been asked after April, I would be a very 12 rich man right now. I could not even begin to 13 speculate on who asked me what questions and 14 relative to testimony and not testimony.
15 Q. Let me ask you this: Other than the 16 request from Mr. Zahnleuter to be a witness which 17 was made approximately two months ago, had anyone 18 else expressly made a request upon you that you be
, 19 a witness?
20 A. No. I think the only discussion that 21 took place that I can give relevance to at this
- 22 point was following my congressional testimony.
23 After that some period of time where Mr. Lampher J 24 did call me from Kirkpatrick & Lockhart.
- 25 Q. When was that?
t
o.
171 1 A. I can't recall. It was after the 2 April fiasco.
3 Q. Did he ask you to be a witness?
4 A. He mentioned the fact that there is a 5 possibility we would like to talk to you with 6 regard to some of these-concerns, and I at that 7 point said I am willing to talk to anyone, and 8 that's where it ended basically two months ago.
9 Two months ago Mr. Zahnleuter communicated with me, 10 to the best of my r e c o l.l e c t i o n .
11 Q. When did you agree to testify in the 12 proceeding?
13 A. I finally agreed probably about two 14 weeks ago, ten days or two weeks ago.
15 Q. Prior to that decision had there been 16 other communications between you and Mr.
17 Zahnleuter or anyone else?
18 A. Just in discussion prior to in terms 19 of the possibility of being a witness and 20 providing your expertise, that's all.
21 Q. Did you discuss compensation?
22 A. Compensation has never been discussed.
23 Q. To this day is that true?
%, 24 A. To this day, that is correct.
25 Q. Have you received any compensation in
172 i, . 1 1 connection with preparing for this hearing or i
2 preparing to be a witness in the proceeding?
3 A. No, not at all.
4 Q. Have you received any reimbursement 5 of any expenses which you incurred?
6 A. No, I have not.
7 Q. Have you reached any agreement with 8 anyone concerning a reimbursement?
9 A. It has never been discussed, never i
10 been broached, 11 i
Q. Has the principle of whether expenses 12 will be reimbursed been discussed?
s 13 A. Nothing of that subject matter has 14 been discussed.
15 Q. Did you know whether you were going 16 to receive any compensation? l 17 A. I have no idea and I never asked.
18 Q. Do you intend to ask?
19 A. No. It depends. I may ask you, if 20 you keep me here any longer.
21 Q. Was there a particular reason why 22 some six weeks or so elapsed between the first 23 request and your agreement to appear as a witness?
r g, 24 A. Basically we just didn't communicate, 25 and I have had a lot of things I have been
o r
173 g.. 1 involved in in my life. This is not the primary 2 issue of my life any longer.
3 Q. When you were first approached by New 4
York State and asked if you would be a witness, 5 did you indicate that.that was a proposal which 6 was acceptable to you?
7 A. I just said that I had agreed only .
8 about ten days ago, so obviously I took time to 9
think about this and review it and look at my 10 options, and my options being of course that 11 someone was going to want me here somewhere in the 12 process, and New York State and the county 13 appro. ached me, and I do believe in what they are 14 contending on 15 and 16.
15 Q. Did you review any documents during 16 the period between the first communication and 17 your decision to become a witness?
18 A. No. The only thing is I said I read 19 over the contentions once or twice, and that's it.
20 Q. Did you review the contentions before 21 you agreed to become a witness?
22 A. Yes, I did. I looked them over prior.
23 Q. From whom did you receive them?
,j.
24 A. Mr. Zahnleuter.
25 Q. Did he mail them to you?
o 174 9-l 1 A. Yes, he mailed them to me.
2 Q. When was that?
3 A. I can't recall when I received them.
4 I think I mentioned approximately six weeks ago.
5 Q. Had you asked him for a copy of the 6 contentions?
7 A. I had wanted to see, yes, what they 8
basically were contending and I asked for a copy 9 of it.
10 Q. Did he tell you that he specifically 11 wanted you to be a witness with respect to those 12 contentions which you reviewed?
13 MR. ZAHNLEUTER: Objection. I have 14 to object o ne the grounds of attorney work product 15 and attorney / client privilege regarding that 16 discussion and I instruct Mr. Petrone not to 17 answer.
18 MR. DAVIES: I don't think he was a 19 client at that time. I am referring now to the 20 conversation some six weeks before he agreed to be 21 a witness.
22 MR. ZAHNLEUTER: The consultation 23 process is still covered within my objection.
r y ., 24 MR. DAVIES: We will take the same 25 position with respect to that communication,
. - _ . - . ~ -- -- -
/
175 r, 1 though for other reasons, principally the absence 2 of an attorney / client relationship.
3 MR. DAVIES: Let's take a short break.
4 (Recess taken.)
5 Q. Other than the. meeting of Friday last, 6
the 12th, and the c o nv e r s a t i o.n when you were asked 7
to be a witness and the conversation when you 8
agreed to be a witness some six weeks later, have 9
there been any other meetings at which your 10 testimony concerning contentions 15 and 16 have 11 been discussed?
12 A. Not specifically with 15 or 16. We 13 did meet prior in terms of just discussing the 14 process, as I mentioned. Probably one or two 15 meetings prior to discuss the process and my 16 involvement.
17 Q. When was that?
18 A.
I can't recall the time frame other 19 than there has been this two-month time frame.
20 Q. Were these meetings that occurred 21 before the date upon which you agreed to be a 22 witness?
23 A. Yes.
24
.,,. Q. Where did these meetings take place?
25 A. They took place in Suffolk County.
e 176 i, . ; 1 Q. Attended by whom?
L 2 A. Ms. Letsche, Mr. Zahnleuter, and we 3 utilized the State Office in the Department of 4 State.
5 Q. In Hauppauge?
6 A .- - Yes.
7 Q. Was anyone else present?
8 A. Ms. Pohanka, who is with the Governor.
9 Q. Who is she?
10 A. The liaison for the Governor's Office 11 based in Suffolk.
12 Q. In Hauppauge?
13 A. Yes.
14 Q. She was present?
15 A. Yes.
16 Q. There were two meetings?
17 A. Yes, just basically to begin 18 discussions. They were short meetings.
19 Q. What did you say at these meetings?
20 MR. ZAHNLEUTER: Objection, attorney 21 work product and attorney / client privilege.
22 Please don't answer.
23 MR. DAVIES: I once again want to f~
5.id 24 make it clear that I believe we have a right based 25 upon two factors, one that at the time of these
177 1 meetings Mr. Petrone had not become a witness in 2 this proceeding, and secondly the presence of Ms.
3 Letsche and Ms. Pohanka, who is not an attorney, a 4 person who is not there as an assistant or an 5 employee of the attorneys, all of which combined 6 to rob the occasion of any of the qualities which 7 would be necessary for the assertion of either the 8 attorney / client privilege or the work product 9 privilege.
10 I assume again, so we cannot belabor 11 this, that you would assert one or more or both of 12 those privileges and bar inquiry into activities, 13 communications and statements at both of these 14 meetings which occurred in Hauppauge; is that 15 correct?
16 MR. ZAHNLEUTER: I will not allow Mr.
17 Petrone to answer questions about the subject 18 matter of discussions at those meetings.
19 MR. DAVIES: Would you permit him to 20 identify the nature of any documents he may have 21 examined at those meetings?
22 MR. ZAHNLEUTER: No.
23 MR. DAVIES: We naturally reserve the
, 24 right of full inquiry concerning those meetings 25 for the reasons that I have alluded to and the
r
, 178 7"1 1 reasons that I articulated in connection with the L
2 meeting which occurred in Albany attended by 3 yourself, Mr. Palomino, Ms. Letsche and Mr.
4 Petrone.
5~
THE WITNESS: It was New York City.
6 MR. DAVIES: Just so the record is 7
clear, the meeting that I said occurred in Albany 8
occurred in the Governor's Office in New York City.
9 THE WITNESS: Last Friday.
10 MR. DAVIES: I think I have stated my 11 position with respect to the inquiries which we 12 would make and naturally we reserve the right to 13 pursue that following a ruling from the board with 14 respect to this apparent assertion of 15 attorney / client and/or an attorney work product 16 privilege.
17 Q. So I can fix these two meetings at 18 Hauppauge, did they occur subsequent to the date 19 some two months ago when Mr. Zahnleuter approached 20 you concerning your desire or ability to be a 21 witness?
22 A. The original approach was at one of 23 the meetings.
t g 24 Q. That was approximately two months ago?
25 A. Approximately two months ago.
179
,;. 1 Q. Prior to that meeting had you 2 reviewed contentions 15 and 16?
3 A. No, I had not.
4 Q. What period of time elapsed between 5 the first meeting in Hauppauge and the second 6 meeting in Hauppauge?
7 A. Probably a month.
8 Q. During the intervening period had you 9
reviewed contentions 15 and 16?
10 A.
I believe I stated that I believe I 11 received them six weeks ago to a month, so I 12 believe I received the contentions and then we had 13 our second meeting.
14 Q. The contentions, I think you said, 15 had been mailed to you?
16 A. Correct.
17 Q. And to your best recollection today, 18 that occurred between the two meetings?
19 A. I believe so.
20 Q. Had you agreed to be a witness prior 21 to or subsequent to the second meeting?
22 A. I had mentioned only ten days ago I 23 agreed.
24 HR. DAVIES: Subject to those matters 25 which I have already articulated as being areas
r 180
-; 1 with respect to which we claim a right of inquiry, 2 I have no further questions at this time. Thank 3 you, Mr. Petrone.
4 MS. LETSCHE: I have no questions.
5 MR. ZAHNLEUTER: No q.uestions. I 6
would like to ask Mr. Petrone if he has in 7 preparation for this deposition reviewed Guidance 8
Memorandum 17 or NUREG 0654.
9 THE WITNESS: No, I haven't.
10 MR. ZAHNLEUTER: I have no other 11 questions.
I would like to state for the record 12 I we do have a stipulation with regard to testimony 13 dealing with other, exercises and if I understand 14 correctly, that matter will be closed at the close 15 of this deposition.
16 Furthermore with regard to the 17 assertion of attorney work product and 18 attorney / client privileges, I think you have asked 19 Mr. Petrone whether or not he knows what his 20 testimony is. He has said he has not, but on the 21 other hand you have had an ample opportunity to 22 probe the opinions that he may have, and you have
, 23 done so at this deposition.
1
, ,3 24 MR. DAVIES: Let me just respond to 25 that. It would take, I think, more expertise than i
l
. 181 3 1 any living lawyer possesses to elicit from this 2
witness anything meaningful concerning testimony 3
which he himself doesn't yet know or doesn't yet 4 have any basis of formulation, and therefore if 5
your statement was intended to be an attempt to 6 limit examination based upon this examination 7
being a fair and full opportunity to determine 8
what testimony Mr. .Petrone might give with respect 9 to contentions 15 and 16, I must reject it and 10 state that plainly when Mr. Petrone is on record 11 as having said that he has not yet bagun to 12 prepare and doesn't yet know what his testimony 13 will be, we cannot possibly have meaningful 14 discovery with respect to that issue.
15 Let me also just ask this. In light 16 of your question concerning what he has reviewed, 17 I believe that you have opened the door to 18 questions concerning documents which were reviewed 19 by Mr. Petrone and you have waived the assertion 20 of a privilege with respect to the identification 21 of documents which were reviewed by yourself 22 asking the witness to exclude certain documents.
23 In light of that I would like to take
.,,, 24 this opportunity now to ask Mr. Petrone to 25 identify those documents which were reviewed by
182
}; I him at the meetings in Hauppauge and in New York
...J 2 City.
3 MR. ZAHNLEUTER: I object. Your 4 ' position is without merit and I assert the 5 attorney work product and attorney / client 6 p'r i v i l e g e .
7 MR. DAVIES: It is my position that l
8 by asking questions yourself as to the witness' 9 review of documents, you have waived that 10 privilege.
11 MS. LETSCHE: Let me note for your l ,
12 information, Mr. Davies, concerning your. inquiry V :
kJ 13 of witnesses, there have been kots and lots of 14 depositions of witnesses taken in this case, both
, 15 in this litigation, both in this exercise L
16 litigation and in prior litigation, and most of i
17 the lawyers, whether we are technically competent-i 18 or not, are able to inquire and ask as to 19 witnesses' opinions, despite the fact that most 20 .
witnesses at the time they are deposed have not 21 prepared their testimony, and I just want the 22 record to reflect that.
l 23 MR. IRWIN: Let me add one thing with 24 respect to prior discovery. One of the reasons 25 this deposition has taken some of the twists and I
c- . - - n-- -- - ----_-------_-_-------- _ ------- - _
183 1
turns it has taken has been that prior discovery 2
and attempts to inquire into witnesses' views and 3
witnesses and bases for testimony have been a 4
continuing exercise in frustration which has led 5
to an inability to prepare proper summary 6 disposition papers.
7 One of the purposes of summary 8
disposition'is to narrow and focus litigation, and 9
if the conduct discovery is strategized and 10 orchestrated in a way to frustrate the bringing 11 forth of expert knowledge on the subject matter, t'
12 that is something which frustrates the intended 13 function of discovery and a matter for which we 14 may have to seek remedies.
15 (Time noted: 5:10 p.m.)
16 17 18 19 20 21 22 23 6- 4 24
. . . .. 25 '
e 184 A_C K N O W L E D G M E N T
{a l
2 3 STATE OF NEW YORK:
4 COUNTY OF NEW YORK:
5 6
7 I. FRANK PETRONE certify that I have 8 read the transcription of my testimony, and that 9 the foregoing is a true and accurate transcription 10 of same.
11 12 -
13 FRANK PETRONE 14
- 15 16 Signed and subscribed to before me 17 this ,
day of_,, , 1986.
18 19 . . _ . . . _ . . . . _ _ _ _ . . _ _ _ ___
20 NOTARY PUBLIC 21 22 23 l
- _J 24 25
^""""~ "
L.1MNSCRLFf OF :?30CSDNGS UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
_ _ _ _ __ ____ _ _ _ _ _ _ _ _ _x In the Matter of: :
- Docket No. 50-322-OL-5 LONG ISLAND LIGHTING COMPANY : (EP Exercise)
(Shoreham Nuclear Power Station, (ASLBP No. 86-533-01-OL) I Unit 1) :
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x DEPOSITION OF t JAMES'CONRAD BARANSKI, JAMES DOMINIC PAPILE and LAWRENCE BRUNO CZECH l l
Albany, New York l
Tuesday, February 3, 1987 I
i ACE-FEDERAL REPORTERS INC.
Stertotu.tv I4vrters 444 North Caoitolstreet Washington, b.C. 20001 (202) 347 3700 Nationwide Coverage l 800-336-6646 J-----~._..._ . . - _ _ . . _ _ -_ _ _ _ . _ _ _ . . - . . . _ . _ . _ .
~
l 3 t ;
i 195 l t
i i
' i g Fitzpatrick EOF, I would be told to be in the Fitzpatrick j
] !' I
,f EOF area, I would have myself a motel room up there, and then at the appropriate time I would get a call and say, !
3 1 I
"Okay, it's now time to go." I would wait a while to i 4l .
, simulate some rapid transit time, and then arrive at the
- i g; EOF.
- j i
.. So that type of prepositioning, if you will, has !
! i
- I been agreed to by FEM 4. :
.i 'l 1 9 O Gentlemen, whom have you met in preparation for i .
I 10 this deposition? ,
5 11 A (Witness Papile) Ask that question again. I 4
l
! 12 , couldn't hear you, j i
j 13 j C With whom have you met or consulted in l '
, 14 preparation to give testimony at this deposition?
l 15 l A The three of us have met, and as I said j If yesterday, with my counsel.
l ,
l 0 Who was present at that meeting?
17 ) '
A The two counsel.
18l !
l !
19l 0 Mr. Zahnleuter, Mr. Lanpher and the three of you?
20 A Yes.
l o
1 21 O Approximately how long did that meeting last?
1 22 A I am trying to think. Three and a half hours, l i l ,
ACE-FEDERAL REPORTERS, INC. l 202-347 3700 Nanonmide Coserage 34336-6M6 i
196 l
all told. I am just guessing again.
A (Witness Czech) 2 That would be about my 3
recollection.
4 A (Witness Papile) Yes. 10:30 to 12:30, yes, 5 about three and a half hours.
6 Q What documents have you reviewed in preparation 7 for this deposition?
9j A The only document I saw yesterday was the ,
9; document that I showed you I had never seen before. That's
! 10' the only one. Remember I said I hadn't seen it till t
11 yesterday.
12 ! Q Right. !
l A
t 13,;
That was the only one that I looked at yesterday. .
i 14j Q Prior to yesterday had you reviewed any documents !
15! in preparation for this deposition?
16 A
- The only documents that I have reviewed is a copy I, ,
4 1 17 ' of this.
l
. 13 l Q How about you, Mr. Czech?
13 A (Witness Czech) The only document I reviewed was ,
20 l the interrogatories as submitted. 3 21 Q How about you, Mr. Baranski?
i 22< l A (Witness Baranski) Guidance Memorandum 17 Rev. j ACE-FEDERAL REPORTERS, INC.
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Attachment 5
'IRAXSCluP1 l~ OF PROCHFDINGS UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l - - - - - - - - - - - - - - - - - - -x In the Matter of: :
- Docket No. 5 0-3 2 2-OL-4 5,3 LONG ISLAND LIGHTING COMPANY : (EP Exercise)
(Shoreham Nuc:. ear Power Station, : (ASLBP No. 86-533-01-OL)
Unit 1) :
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x
[
CONTINUED DEPOSITION OF JAMES C. BARANSKI, JAMES D. PAPILE and LAWRENCE B. CZECH l
l I
Albany, New York Wednesday, February 25, 1987 ACE-FEDERAL REPORTERS, INC.
Stenotype ?prters 444 North CapitolStreet Washington, D.C. 20001 (202) 347-3700 Nationwide Coverage 800-336-6646
243 g 01 Q And counsel indicated that he wished the three of 2
you to appear as witnesses on Contentions 15 and 16?
3 A (Witness Czech) That's correct.
4 0 Did he give a reason?
5 A No, not that I can remember. j I
6l 0 And your appearance was at the suggestion of 7l ;
counsel rather than at your suggestion to him; is that correct?
8 l l 9 A That is correct. l 10 0 Mr. Baranski, did you have any separate i
11 communications on this subject?
f 12 A (Witness Baranski) No, sir, I d id not.
13 0 During those initial discussions did anybody ,
i 14 f indicate to you any need or reason for designation of you as l '
15 i witnesses at that time? '
I 16 A (Witness Czech) I didn't even raise the !
t 17 : question, and I don't believe it was mentioned. I i
! 18 0 Since that time have you had any discussions or 19 meetings concerning the scope of your intended testimony on 20 Contentions 15 and 16?
21 A We had a meeting yesterday to review for the 22 deposition for today.
6 I
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244 Ol 6 -
0 And who participated in that meeting?
po n8 A It was myself, General Papile, Mr. Baranski, Mr.
2 Zahnleuter and Mr. Lanpher.
3 4
0 Approximately how long did that meeting last? l A About two hours.
5 6l 0 What subjects were covered during that meeting?
7 MR. ZAHNLEUTER: I object. That information is l
I 8 covered by attorney work product and attorney / client I
9 privilege. So I will instruct them not to answer questions 10 regarding the subject matter of discussions when counsel are 11 present.
12 MR. IRWIN: Person's other than counsel and 13 clients were present at that meeting. I do not believe the 14 privilege to which you are referring applies when persons 15 l other than counsel are present.
I 16 MR. LANPHER: The only person other than counsel 17 that was present was myself and it's a joint counsel 18 privilege. You'll have to take it to the Board if you want 19 to. We consider those conversations privileged.
20 MR. ZAHNLEUTER: And I disagree with your 21 position, as I have disagreed before.
22 BY MR. IRWIN:
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o 245 g 01 1
Q Have you conferred with Frank Petrone concerning pn8 2
the subject of your testimony on Contentions 15 and 16?
A (Witness Papile) I have no.
4 A (Witness Baranski) No, sir.
S
^ "'" *** "*'
6i (Laughter.)
7 MR. IRWIN: Should I read anything into your tone of voice, Mr. Baranski?
8l 9 WITNESS BARANSKI: Nc, sir.
10 (Laughter.)
11 BY MR. IRWIN:
12 Q. Has anybody related to you ge'ntlemen anything 13 concerning the intended scope of your testimony on 14 Contentions 15 and 16?
I 15 A (Witness Papile) Up to this point, no.
16 ! 0 Has anybody indicated to you any line of
- i 17 l demarcation between the intended scope of your testimony and 18 that of the intended scope of testimony of Mr. Petrone on 19 Contentions 15 and 16?
20 A Absolutely not for me.
21 Q And neither of you gentlemen knows anything 22 separately?
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~^ . _ .
Y Attachment 6 4334 3311 gisons 1 I did not go back to the transcript, but the schedule that I f
l 2 was working from, which was the one submitted by Mr. Irwin 3 on April 8, and which he maintains is based on bench rulings f d of April 6 and 7, had two days with a possible third day 5 scheduled for contentions 15 and 16, the LILCO testimony on 6 Contentions 15 and 16, and had two days scheduled for the i
7 Suffolk County /New York testimony on Contentions 15 and 16. "
8 What I did was to adopt three days for the LILCO ll
' testimony and two days for the Suffolk County /New York 10 testimony.
II MR. ZAHNLEUTER:
I checked that letter, too, and l l
12 you're corr'ect. I must have had a memory from some other 13 source.
h 14 JUDGE FRYE: If you're going to have extensive 15 examination, and or course I guess you don't know until you 16 hear the other examination how extensive yours will be, do 17 you? !
MR. ZAHNLEUTER: That's right.
18 I 19 JUDGE FRYE: So far it hasn't been too I I
20 extensive. !
MR. ZAHNLEUTER: That's right.
21 l
, 22 (Laughter.)
23 But hopefully meaningful.
l 24 (Laughter.)
25 JUDGE SHON: Meaningful out of all proportions, l
1
4335 g3 11N ,isons i let's say.
2 (Laughter.)
3 MS MONAGHAN: Judge Frye, I'm still a little d unclear on your ruling on the motion to strike with respect 5 to the organizational structure issue. As I understand it, 6 you said that to the extent that it doesn't deal with 7 exercise events that that testimony should be treated as a
stricken?
JUDGE FRYE: Yes. Let me state it the other 30 way. To the extent that it raises matters that were
'I revealed by the exercise, and those matters bear on the Otherwise, 12 efficacy of"the training program, it's admitted.
13 it's stricken.
Id MS. MONAGHAN: But you're not making a specific 15 ruling as to specific paragraphs or sentences?
I6 JUDGE FRYE: No.
I7 MR. MILLER: Judge Frye, could I raise one other is procedural matter. Actually let me mention two. Ms.
Monaghan and I discussed during the lunch break Mr.
20 Weismantle's schedule for next week. What I've sugges ed to !
l 21 Ms. Monaghan is that since I intend to follow through the 22 testimony chronologically, it would appear to me, and I 23 would prefer having Mr. Weismantle available toward the end 24 of the week rather than the beginning of the week and she's 25 going to check Mr. Weismantle's schedule to see what can be
.O-
^
LILCO, May 5,1987 00LnEiLP USMFC
'87 MAY -7 P4 52 CERTIFICATE OF SERVICE Off tCE F hutIM 00CKE.U E '. 9
- L BR4NC" In the Matter of-LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of MOTION TO LIMIT CROSS-EXAMINATION BY NEW YORK STATE AND SUFFOLK COUNTY were served this date upon the following by telecopier as indicated by one asterisk, by Federal Express as indicated by two aster-isks, or by first-class mail, postage prepaid.
Morton B. Margulies, Chairman ** Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy. Atomic Safety and Licensing Bethesda, MD 20814 Board Panel U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline ** Washington, D.C. 20555
' Atomic Safety and Licensing Board Richard G. Bachmann, Esq. **
U.S. Nuclear Regulatory Commission George E. Johnson, Esq.
East-West Towers, Rm. 427 U.S. Nuclear Regulatory Commission 4350 East-West Hwy. 7735 Old Georgetown Road Bethesda, MD 20814 (to mallroom)
Bethesda, MD 20814 Mr. Frederick J. Shon **
Atomic Safety and Licensing Herbert H. Brown, Esq. **
Board Lawrence Coe Lanpher, Esq.
U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.
East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy. South Lobby - 9th Floor Bethesda, MD 20814 1800 M Street, N.W.
Washington, D.C. 20036-5891 Secretary of the Commission
' Attention Docketing and Service Fabian G. Palomino, Esq. **
Section Richard J. Zahnleuter, Esq.
U.S. Nuclear Regulatory Commission Special Counsel to the Governar 1717 H Street, N.W. Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany, New York 12224
Mary Gundrum, Esq. Jonathan D. Feinberg, Esq.
Assistant Attorney General New York State Department of 120 Broadway Public Service, Staff Counsel Third Floor, Room 3-116 Three Rockefeller Plaza New York, New York 10271 Albany, New York 12223 Spence W. Perry, Esq. ** Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq. **
Stephen B. Latham, Esq. ** Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 D. 1 ^J James N. Christman flunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: May 5,1987 4
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