ML20235Y581
| ML20235Y581 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/21/1989 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| CON-#189-8247, REF-10CFR9.7 OL-3, OL-5, NUDOCS 8903140356 | |
| Download: ML20235Y581 (105) | |
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-j UNITED STATES OF AMERICA
-NUCLEAR REGULATORY COMMIS SION t8'. ORAL ARGUMENT ON SANCTION ISSUE IN SHOREHAM PROCEEDING LOCati0n: RoCKVILLE, MARYLAND Dat0. FEBRUARY 21, 1989 P&g6Sl 101 NEALR.GROSSANDC0.,INC.
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a; UNITED STATES OF AMERICA
'. NUCLEAR. REGULATORY-COMMISSION 4
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ORAL ARGUMENT ON SANCTION' ISSUE IN SHOREHAM PROCEEDINGS PUBLIC' MEETING Nuclear Regulatory Commission 1 White Flint North Rockville, Maryland Tuesday, February 21, 1989 The Commission met in open session, pur's u em t to notice, at 2:00 p.m., Lando 4. Zech, Jr., Chairman, presiding.
COMMISSIONERS PRESENT: .
LANDO W. ZECH, JR.
THOMAS M. ROBERTS KENNETH C. ROGERS KENNETH M. CARR NEAL R. GROSS ;
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STAFF-AND PRESENTERS SEATED AT THE-COMMISSION TABLEr
-'! LSAMUEL'J. CHILK, Secretary.
WILLIAM'C.. PAP.LER,' General Counsel:
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"For-Suffolk County,iTown of Southampt'n, o HERBERT H. BROWN LAWRENCE LANPHER For-the State of?New York' RICHARD-J..ZAHNLEUTER
-lFor-Long Island-Lighting Company. .
i DONALD P.~IRWIN
' TAYLOR REVELEY .;
-IRA FRETLICHER JOHN LEONARD For:NRC EDWIN J. REIS JOSEPii SCINTO -
MITZI-YOUNG ;
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! .3 : CHAIRMAN ZECH: Good afternoon.
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4- This afternoon: the Commission wi11' hear? orsi.
5 argument on the appeal issue identified in our' l
6_ -November the. 9th, 19 8 8 ' o r d e r. in this . proceeding :
7 involving tih e Long - Island ' Ligh tind Company 's -
8' . application to operate the Shoreham Nuulear Power-9 Stati.on' Unit Number 1.
10 Commissioner Curtiss will not par'ticipa te - lo ; -
11 Lhis Commission's decision .on this matter now pending 12- before the ~ Commission in the instant appeal,- and 13 accordingly is not present for today's oral arguments.
14 Parties opposed.to the sanctions imposed by 15 the' Licensing Board will have 40 minutes to present-16 'their arguments. Parties in f avor of the sanctions' 17 will likewise have 40 minutes to present their 41 8 arguments. Parties for each side are-responsible far 19 deciding among themselves on the division of their 40 20 minutes. The parties opposing the sanctions may
- 21. reserve some portion of their 40 minutes for rebutt.a1 22 The Commission will hear first from the 23 opponents of the sanctions.
24 I understand, Mr. Brown, you will go first.
25 MR. BROWN: That's right.
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-1 CFAIRMAN ZECH: Would you state your c a n' e 2 for the record and who you're representing, please?
3 MR. BROWN: Thank you, Mr. Chairman. My a name is Herbert H. Brown of the Washington, D .' C . law 5 firm of Kirkpatrick and Lockhart and I am here 6 representing Suffolk County. On my left, T'm 7 accompanied by my law partner, Mr. Lawrence Coe 8 Lanpher.
9 CiiAIRMAN ZECH : All right. Thank you.
10 I'd like you to please indicete for r.h e 11 record how your 40 minutes has been divided and how 12 much of your 40 minutes you wi.sh to resr' for 13 rebuttal.
14 MR. BROWN: Forty minutes has been div'.ded 15 by Suffolk County and New York State. On my right 15 16 Mr. Richard J. Zannleuter, Depaty Special Counsel to-17 Governor Cuomo who is representing the State of New 18 York.
19 The time has been divided. The initial 20 presentation will be 25 minutes by myself and I will 21 be making a presentation that is covering all three 22 governments, Suffolk County, the state of New York, 23 the town of Southampton.
l 24 After that, for five minutes, Mr. Zahnleuter .,
l 25 will make a separate statement particularly addressed j l
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' 5 1 to the state of New York, and accordingly we will 2 reserve ten minutes for rebuttal.
3 CHAIRMAN ZECH: All right. Fine.
4 The Commission wishes to advise you Lhat the 5 Secretary of the Commission will stricily enCorce i.he 6 time alloted. I'll remind you when you have one 7 minute of your time remaining. You will also see the l
8 yellow light here and the red light will indicate that 9 your time has expired. Presentations will terminate 10 at the end of the alloted time. q 11 If you're ready, Mr. Brown, you may proceed.
12 MR. BROWN: I'm ready and I thank ' you , Mr.
13 Chairman and members of the Commission.
14 The issue here today is.whether Lhe Board's 15 order which dismissed the governments from all the 16 Shoreham proceedings or any other sanction is 17 warranted. The governments will demonstrate, as I 18 will do on their behalf, that no sanction is warranted 19 and that the right course for the Commission at this 20 point is to direct the Board to address the merits of 21 this case with the participation of all the parties.
22 This, as everyone certainly knows, is a 23 celebrated case. It's a case of first impression. It 24 has unprecedented A a r.u e s and it calls for a decision 25 on the merits. It's also a contested case, a case in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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whichL ' the .in tervenors= ~are governments < and thEse :
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governments, as ' every one knows ,- .have - s trong - viewx L 12:
- 3. iwhich are againstfthe' licensing of the:Shoreham-plant.
'4l 'These; views also'should be considered on the merits.
.j 5 ,- !It;doesn't do- j us tice ..: to the impor te.nce .of :
6, 'this case f or. thelissue' to be whether the go'vernmentw 7 shoul'd be silenced rather than;whether.the. governments 8 are right.
9 Two.of the three Licensing Board' judges,: in-10_ 4- s' weeping decision, dismissed thv government s from 11 alll the Shoreham proceedings, even: from evWrythjng.
- 12 before other boards- and f rom bef ore the Commission
- 13. itself'. And as La' result, in September, they 14 authorized [ the licensing of Shoreham 'at 100 percent-15 and in November at-25 percent. They didn't authorize 16 these: license by making any' findings on'the merits of 17 . the pending . legal authority . contentions ' or on any
- 18. issue related to 25 percent. The majority just said, 19- "Now thet'the governments are o u t. ' o f the case, no one
. 20 opposes' the license, and therefore, with no 21 opposition, the staff in this now fictionally
_ 22 uncontested case, is free to make the findings 23 necessary for a license."
'l 24 The majority took the extreme step of
( ' 25 dismissing the governments because it claimed that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RNOOE ISLAND AVENUE, N.W.
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1 governments had, in the maj ori ty 's words, "an overall ;
2 plan to subvert the Commission's process Cor political 3 ends." It said the governments behavior was designed 4 to prevent the Commission from reaching en inforred ,j 1
5 conclusion and it said the - government sought to 6 frustrate, to undermine, to thwart the IIP,C ' s 7 responsibilities. In short, the Board majority S imputed contemptible motives to the governments and it 9 expelled the governments from the proceedlop for 10 having these not.ives.
11 It's important for everyone to keep . ct mind 12 that the term " governments" as I'm using it :sn't en 13 abstraction here It refers to 'the elected 14 governments of New York State, Suffolk County and the 15 town of Southampton, and it includes personal'ly 16 Governor Cuomo, the Suffolk County Executive, Petrick
'17 Halpen, and the 18 members of the Suffolk County 18 legislature, all of whom are being condemned by the l 19 Board majority for their alleged motives to subvert 20 you'and subvert your subordinates.
21 The county and state's position, which these
~22 lawmakers have established, are the product of the e
1 23 Constitution of the state of New York and of l ei w s that 24 have been upheld in court and also of sworn affidavits 25 of Governor Cuomo and Suffolk County Executive Halpen l
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- 1 -- ' that~ explain in ~ details why~- the S ta te ;- and ; the; County s:-
hi 2" posi tions . ~ ares required b'y ~ the - responsibili t;ies o f-M 3 ltheirloffices.
4 The majority'.s so-called: findings of'overa]1-
. 5: . pla ns ' ' a nd : o C-s u b'v e r s i o'n , a n d o f ' . t h w a r t i n'g " a n d '
6.: undermining political ends, therefore, are accusations-u
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a g o a.n s t' these ' individuals. Without evi'dence- to:
8, support the majoritys findings,'they are arbitrary in 9 the mos t . ext.reme sense, and - there is no evidence : to
.10 suppor t . the - Board maj ori ty 's' words . -The essence.00
'11 1 the majority's decision is motives, false motives, and-12" - baseless allegations of- ill motives are also the "j.
13 essence Lof - what LILCO ant the staf f ' argue, .and thay' '
14 indeed use: language- that far exceeds even Che-15 characterizati6ns of the Board majority.
'16 To dismiss any . party, and particularly the
' a '17' governments ~, requires the- findings of fact that l.he-18 governments have ' acted .in bad - f aith. - Bad f aith is
'z 19 what 's ' required . This:isn't a technicality. It's a 20 legal standard and it's the' 's tandard the . Board 21 majority itself accepted and the standard that 'it 22 purported to apply. What is telling is that the Board 23 majority never cited any evidence of bad f ai th by . the Instead it looked beyond the facts, !
24 governments.
25 mischaracterized what it saw, assigned false motives 4
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l 1 to its perceptions, labeled these bad faith and then j 2 punished the gover nments . f or these labels.
I 3 The NRC has a statement of policy whleb 1 4 deals with sanctions. It says that even where a perty :
5 dCts With ( l a g ri4 D Cy , juHli.fyldg dism1ssal, and UNL F2 means with bad faith, a licensi ng board still has i. o 7 consider the i. c i, a li ty of the party's conduct before i
8 dismissing .:. t .
9 Here, the Board majerity didu'l give even 10 lip service to the governments' conduct in t%se 11 proceedings over the past seven years. There were 12 nine trials, numerous appeals, countless pleadings and 13 conferences, meaningful victories before the boards 14 and the Commission itself, and other actions that have 15 protected public safeuy. More than once the 16 governments achieved this over the vehement oppositivo 17 of LILCO and the staff who argued for lesser safety 18 standards. With indifference to these circumstances, 19 the majority simply proclained there was nothing to
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20 mitigate dismissal.
21 What the majority relied on to dismiss the 22 governments reveals the absence of both fact and 23 reason. Indeed, there are only three bases the judges 24 claim as grounds for the so-called pattern of 25 obstructionism that they say merits dismissal and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS j 1323 RHODE ISLAND AVENUE. N.W.
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1 requires dismissal of the governments. s 2 First there are a small number of l k l
3 unconnected actions spread over the years, so-called 4 procedural mechanisms which the judges allege wer e 5 used by the governments to delay the Board in carrying 6 out its responsibilities. Second was the County's 7 alleged non production of the County Emergency 8 Operations Plan in 1982 and '83, and its so-called 9 subsequent. concealment by the county and ihe s t a t. e .
10 Third was what the Board called stonewalling and 11 obstruction of discovery related to the legal 12 authority contentions in 1988. The Board claimed this 13 prevented it from reviewing LILCO's plan.
14 None of these claims has merit and; 15 significantly, none involves bad faith. What you'll 16 see as I address each of these three in turn is that 17 the Board majority's opinion itself reveals Lhere was 18 no bad faith and that the only reason the governments 19 were punished was for ill motives which the Board 20 arbitrarily said they had.
21 Let's first examine the group of so-called 22 procedural mechanisms. The Board claims that these 23 were actually artifices designed to obstruct it. Here 24 are a couple examples of that. One was the County's 25 1982 objection to a discovery request on grounds of NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE. N.W.
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'11 1 executive privilege. But what's significant is that 2 the Licencing Board sustained the objection in part.
3 How could some thing _of that order evidence bad feitS 4 of any kirrd?
5 Another was the County *s 1983 mocion to 6 terminate. The Licensing Board accepted it with such 7 seriousness that it referred it to the Appeal Board 8 and then it went on to the Commission itself where it 9 received two separate opinions from the Commission.
10 There was nothing obstructionist or otherwise 11 objectionable in these actions or in the other acts ,
12 ' cited by the Board.
13 .What's very significant is the Board 14 majority itself admitted that LNese very acts were 4'
15 lawful, but it claimed that somehow in combination 16 toey were calculated to frustrate the NRC's procr 17 That is the majority claim that somehow these lawful 18 acts were n.a t amorphos i z ed into objectionable conduct 19 by the governments' alleged ill motives. And the 1
20 logic is stifling because just as everybody knows that ~l 21 two wrongs don't make a right, everyone also knows 22 that seven rights don't make a wrong, let alone bad 23 Caith and let alone a basis to throw the governments ,
1 24 out of all the proceedings before you. ;
1
- 2. 5 Let's turn next to the controversy over l
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. 12 1 production of the Emergency Operations Plan. Again, 2 this didn't involve any bad faith. The evidence 1 before the Board was undisputed, that SufEolk County 4 officials intended to give LIT,CO the plan in whatevec 5 form it existed in 1982 and '83. There was no inLent 6 by anyone to withhold the plan from LILCo.
i 7 What's even more important is that Lhe Board 8 itself did not find that the county had intentional 1.y 9 withheld t.h e plan from LILCO and therefore, by 10 definition alone, if there's no intent it means there U. could be no basis for a finding of bad faith. And as 12 for the town and state, it's noteworthy that they were 13 not even active int.ervenors when the discovery requesL 14 was made and the issue therefore doesn't even r A n t.e 15 to them. It's clear then that neil.her of the Cirst 16 two claims of the Board majority for dismissing th e 17 governments has merit and neilher involves any bad 18 faith.
19 The third and the final basis claimed by the 20 majority for dismissing the governments related to the 21 impasse over discovery in the spring of 1988. This 22 culminated in the governments filing a notice on June 23 10 that the Board had precluded continuation of the 24 remand proceeding. The Board condemned this notice 25 and the Board was wrong. The fundamental cause of the
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13 1 impasse was the Board's interpretation of the NRC's 2 new emergency planning rule. The rule provides that 3 if governments don't have emergency plans of i: heir 4 own, it may be presumed that they will follow the 5 utilILy's energency plau, and here tha t would mean 6 LILCO's plan.
7 What's important is that the rule says this 8 presumption can be rebutted. It can be rebutted. Th-9 governments t.ry to rebut the presumption by showin:)
10 that Cor both legal reasons and government policy 11 reasons they would not Collow LILCO's p'an, but the 12 Board wouldn't let them do that. The Board rul'ed that 13 the only way for the governments to rebut t.h e 14 presumption was by producing emer.gency plans of their 15 own. Since the governments did not produce emergency 16 plans of their own, the Board ruled that the 17 governments would be deemed conclusively to follow 18 LILCO's plan. 'I h i s was impossible for the 19 governments.
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20 First, LILCO's plan says that Lhe 21 governments would authorize LILCO or give LILCO 22 permission to perform various police power functions.
23 This, however, is prohibited by New York law. So, the 24 governments would not, and could not, do that. They 25 were bound by New York law. But the ruling the Board NEAL R. GROSS CO o- m 4RTERS AND TRANSCRIBERS 11's RHf sE ISLAND AVENUE, N.W.
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14 1 made was that the governments couldn't say what I just 2 said, they couldn't say that they were prohibited by 3 law from delegating those police power functions to 4 LILCO.
5 Second, Governor Cuono and three successive 6 Suffolk County executives had explained in sworn 7 affidavits that had been submitted to this Commission S why they and their governments would nol follow 9 LILCO's plan and would nol interface with LILCO, 10 There were also county resolutions whieb had bei-n 11 upheld in federal and state courts boLb that 12 prohibited county resources and personnel Irom beiog i
13 used to follow an emergency plan such as LILCO's. The 14 Board ruled those statements of the Governor end the 15 County Executive and the resolutions I just referred 16 to as unacceptable.
17 In short, these l a w s, and po?icies were 18 binding on all state and county officials and 19 therefore the officials could not explain in 20 depositions how they would follow LILCO's plan or how 21 they would interface with LILCO when, in fact, they 22 would not and they could not do that.
23 To confront this directly, the governments 24 filed objections to the Board's order interpreting the 25 new rule and they attached an offer of proof. The NEAL R. GROSS COURT REPORTIRS AND TRAN$CRIBER$
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1- offer' contained the fallLand.the true~ statement,of'how l.
they would . respond: ' to:: an -- acciden t . a t ' Shoreham.
'2- I t" 3- included the testimony of the Chairman of.-the Disaster
'4 Preparedness Commission:of the state of New? York'and:
5 the: testimony of the Suffolk County Executive.
. 6 The Board then ordered depositions of . these 7 two officials and.others as well. At the. depositions, 8' the ' county and state officials pointed out that there 9 .are no state-and county emergency plans for Shoreham.
10 As a. result, they said that'the governments' response 11 to an-accident at Shoreham would'be ad hoc and would 12 . depend upon the exigencies of the moment. Therefore,
- 13. they said, now they did not.know what they would ' do
.14 - and that they couldn't speculate abo'ut it. -Also, Lhey-15 said that the New York Constitution prevents them-from 16 authorizing LILCO to perform certain functions in 17 LILCO's emergency plan.
17, The answers of the- state and county 19 officials were not what LILCO wanted. To be sure,
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20 LILCO got answers, but they weren't the kind of 21 answers that LILCO needed-to prove its case. So LILCO 22 went back to the Board and obtained an order requiring 23 further depositions of the state and county officials..
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i' 1 planning rule. It was thereafter that the governments 2 filed their June 10 notice.
3 The Board majority labeled the governments' 4 action, "an unjustified refusal to comply wiLb 5 discovery orders," but the label doesn't sti.ek. What 6 the governments did was perfectly lawful. They cbose 7 to stand on their legal rights, they believed the 8 Board's interpretation of the new rule was wrong in 9 preventing them from rebutting LILCO's presumption in 10 the way that they had attempted to do, and so they 11 took- a stand against the Board's discovery order 12 requiring further depositions so as to permit an 13 expeditious appeal of the. Board 's underlying order 14 which had interpreted the new rule.
15 It's without question an accepied legal 16 procedure "or a party in litigation to seek appellate 17 review of an underlying order by declining to comply 18 with a discovery order. In the language of one of the 19 federal Courts of Appeals, which cited the U.S.
20 Supreme Court, "This is a serviceable method, well 21 established in the case law of identifying the most 22 burdensome discovery orders and obtaining appellate 23 review." Surely there's no basis to find that by 24 following a lawful procedure, the governments acted in 25 bad faith.
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17 1 The result is that the governments engaged 2 in no bad' faith conduct at all, let alone a pattern of i I
3 it, and the Board majority therefore had no legitimete 1
4 basis to expel the governments. But let's continue, .
5 for argument's sake, with the remainder of the Board's l 6 reasoning.
7 After proclaiming bad f a i t.h , the majority 8 next stated that there was nothing to mitigaLe 9 Imposing the severest sanction of dismissi.ng the 10 governments. The reason they cited was that in 19E2 11 the governments' contentions had been dismissed as a 12 sanction in so-called phase one of this case, and the 13 sanction had not been an effective deterrent.
14 Something therefore of greater significance wes 15 required at this time.
16 Now, the Board entirely mischaracterized the 17 events of phase one. First, the town and the stale i
1 18 weren't even active participants during phase one.
l 19 Second, phase one didn't involve any bad faith. In 20 phase one, the county opposed a new kind of hearing 21 procedure ordered by the Board, so-called evidentiary 22 depositions. The county took a stand against these as 23 being unlawEul. The county made clear that it was not 24 willing to convert what were supposed to ce public 25 hearings into meetings behind closed doors and the NEAL R. GROSS COURT REPORTER $ AND QANSCRIBERS l 1323 RHOM ISLAND AVENU[, N.W.
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. . 1 18 1 disagreement was a dignified disagreement and it was a 2 matter of principle. It in luded a peraonal letter 3 from the Suffolk County Executive to +he
. Tive 4 Commissioners oC the IiRC.
5 When the Board sLuck by the evidentiary 6 depositions, the county announced that it would not i
7 participate in the he.a. ring on those particular. f 8 contentions. Instead, it accepted dismissal of the }
9 contentions in order to appeal the underlying issue of 10 evidentiary depositions. There wasn't any defience, 11 there wasn't any obs truc t i.on , there was 40 'o a d foi h, 12 there was nothing of the sort. The c ou.n ty did only i
13 what it had a right to do. ?
14 It's clear that what the governments 15 actually did and what the Board said they did are 16 entirely different matters. The governments lived up 17 to their rights and duties as litigants in this 18 proceeding. They have litigated for seven years, as I
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19 mentioned earlier, in nine different trials.
20 They've been in numerous appellate 21 proceedings before the Appeal Board and indeed before 22 this Commission as well, and they won major victories 23 .t n the process and, in fact, played a very 24 constructive role in protecting the integrity oC the 25 tiRC and the inLegrity of the IJRC ' s regulations, not NEAL R. GROSS COURT REPCRTERS AND TRANSCRIBER $ )
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yg 1 the least of which was proven' to other licensing 2 boards over the opposition of LILCO and the staff that 3 -the scope of LILCO's 1986 exercise was deficient e.4 n d ai that LILCO's emergency plan was fundamentally flawed.
5 And also in 1984, again over LILCO and steif 6 opposition, the governments proved to the. Commission 7 itself that'one of the NRC's critical safety criteria, 8 so-called General Design Criterion 17, should not be 9 circumvented by the interpretation that had been 10 promoted by LILCO and by the staff. It defies ressun 11 for the Board majority to rule that bad faith imbued 12 the governments' conduct, consistently, the Board 13 said, during this multifaceted seven year proceeding.
14 Yet the Board not only sa'id it, but it did 15 so afLer claiming to have reviewed the entire record 16 of the proceeding, the whole seven years. This is a 17 claim which, I submit, no one can take seriously.
1S The majority's decision is simply not a 19 credible decision. The false motives imputed to state
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20 and county policymakers, the accusations of an overall 21 plan to subvert the NRC's process for political ends, i
22 which point incidently directly to Governor Cuomo and !
23 to County Executive Halpen, and the allegations of a 24 design and a strategy of the governments to frustrate 25 and undermine your exercise of authority and your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
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20 1 review process deserve your prompt and your total 2 rejection.
3 The necessary conclusion is the governments 4 can't be dismissed from any of the Shoreham 5 proceedings. There wasn't any bad faith or enything 6 of the sort to warrant any sanction at all.
7 Therefore, the Commission should now 8 reinstate the governments. It should direct the 9 Licensing Board to make the essential decision on the 10 merits, confronting the evidence of record and the 11 full and the true testimony submitted by the 12 governments. It should correct the Board's 13 misinterpretation of the new rule and permit the 14 governments to rebut the rule's presumption, as the
~15 governments have sought to do.
16 The Board's ruling that the only way to 17 rebut the presumption was by producing state and 18 county emergency plans is clearly erroneous and indeed 19 the First Circuit Court of Appeals' decision upholding 20 the new rule made that clear. It said that, in fact, -
21 there is more than one way to rebut the presumption.
22 We submit that such rulings by the Commission would l 23 indeed restore legitimacy to this proceeding.
24 Thank you. 1 25 CHAIRMAN ZECH: Thank you very much. ., e me l
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.lo just.ask-you, before we~ proceed to'the.next presenter,.
2 you've made a' point,-Mr. Brown, of talking-about the.
- 3. legal. constraints.and the law.which prevented'you.from L
4 proceeding. Did you,-bring f orward those legal 5' constraints and those laws to the Board? Could you--
6 MR . . BROWN : IfI understand your . answer 7 correctly --
8 CHAIRMAN ZECH: In other words, why were you 9 . legally . cons trained and did you. bring that forward to 10 .show:that you were legally constrained?
11' MR. BROWN: We did'indeed, end we had: done
' 12. that substantially months and years before.as weill .
13 CHAIRMAN ZECH: Could you summarize very
' 14 briefly for us why you were legally constrained?' .Ubat 15 specific laws were you referring to?
16 .MR. BROWN: I'd be pleased to. There are 17 two sets. There's the county's resolutions which are 18 laws that have been upheld in court that I'll describe 19 briefly, and there's also the law of the state of New 20 York, in fact the Constitution. I'll get to that 21 afterward.
22 As everyone knows, Suffolk County determined
~ 23 in February of 1983 not to adopt or implement an 24 emergency plan. It was not an instinctive knee-jerk 25 decision by any means. It was the product of one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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22 1 year, roughly, of very serious consideration by a team 2 of nationally known experts. The county had made an 3 out of pocket expenditure of $600,000.00 for people 4 who -- well known planners, including the group thal 5 had done time estimates for FEMA, the former liead of 6 research of the Nuclear Regulatory Commission, a 7 gentleman from Aerospace Corporation who is an expert 8 on consequence analysis, and a list of luminaries, 9 which I won't go through end to end.
10 The work product they transmitted to the 11 county legislature and the county legislature held, I 12 believe it was, eight days of hearings. After the 13 process of bring ing in experts, and LILCO itself 14 testified twice, and police department and officials 15 closest to the question of whether it's feasible to 16 evacuate on the only thre roads that go east and west 17 away from the plant, concluded Lhat it would not be 18 possible to evacuate or otherwise protect the public 19 in the event of an emergency at Shoreham.
20 So, what they did, to use almost their 21 words, to paraphrase their words, is they decided it 22 was their obligation to tell the truth and not mislead 23 their public into believing they were being protected 24 when, in fact, they were not. So, the county 25 determined that it would not in resolutions adopt or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
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'23
'1'- implement;an emergency plan.
2 They also, in another companion resolution,.
.3- .provided as they - did1 in this initial 7ebruary *83 4 Lresolution, that. no coun ty ; resourcest or: personnel-could ' he used to implement ' any emergency plan . tha t
'5 6: hadn't.been approved by t h e. county ' legislature.
7 LILCO's . plan has not: been = approved , and ' accordingly '
~
8: the.. county cou1d not follow or implement LILCO's.-plan.
9 So, incidentally, these resolutions--were.
10' challenged by - LILCO . firs t ' in federal. court and the 11 -' Uni ted' ' S ta tes District Court for the' Eastern District 12; of NewfYork ' upheld the resolutions. They said. they were ' lawf ully and rationally based.
'13 ' The ' case was
'14. taken by LILCO to the-Second Circuit Court of Appeals 15 and the Second Circuit' affirmed it. So we have those 16 county laws which bind county officials.
h '17 The second. set of laws deals with whether--
18 LILCO's plan.has a provision. The central premise-of
'19 the plan that LILCO will get _ permission from county 20 . authorities, and also from state authorities, to 21 conduct functions which are essentially police power 22 functions, being involved in the direction of traffic, 23 sounding alarms, the sirens, things which we associate 24 exclusively with the functioning of government. They 25 affect the public interest, they demand responses from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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,1> '. p e o p l e - o nf ' t h e grandest scale' imaginalile , 'perhaps l; 2- hundreds'of thousands of people =to get onto roads and 3 be' . in a e situation- where . .their ~ saf ety woul'd :be in L4 -peril. ,
(
p 5 ' The county , under the Constitution , of t.he -
l-believes and~ determined that.it-did.
<r 6. state of New York, 7- ' not . have' the: power to' delegate'any~of that to. lit,CO.
L S' Now, LILCO challenged ' tha t, _ of course, and they ~ had ;
.9 ' their" own arguments ' to Lhe contrary. This went to 10 court. .It went to the lowest court. It's the trial' 11 courtLin New. York which is called the Supreme -Court.
' 12 The justice in-the Supreme Court ruled that'the county 13 could not delegate to ~LILCO these police power
-+
14 functions.
15- The case then went to tha- Appellate 16 Division, which had four judges.on it, and those-four 17 judges ~ unanimously held that the' county could not'
.18 delegate those police power functions to LILCO.
19- Then the case went ultimately to the Court 20 of Appeals. The Court of Appeals made a ruling on an- ..
. 21 issue of technical jurisprudence that what was being 22' asked for was what's considered an advisory opinion.
is not technically what they would call a.
- 23 It 24 justiciable case in controversy, which means it's not I'
l 25 a fight at this moment with people punching their t
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- 25 1 ' noses out. Therefore, it's a case that shouldn't have 2 been brought to begin with. So, it technically erased 3 from the books the cases that had been decided.
4 But what's significant is that there are 5 five judges in the State of New York who looked at 6 that issue. Those five judges all took an oath and 7 swore to uphold the Constitution of the State of New 8 York and unanimously they all agreed with the county 9 that the county cannot delegate its functions.
10 CHAIRMAN ZECH: Thank you very much for 11 that. But let me just ask you one other question. I 12 hope you'll answer as briefly as you can.
13 You've made an argument that your conduct 14 does not warrant dismissal.
15 MR. BROWN: Yes, sir.
16 CHAIRMAN ZECH: Would you characterize for 17 the Commission what kind of conduct you would think 18 that would warrant dismissal from proceedings?
19 MR. BROWN: I think clearly the standard is 20 a bad faith standard. I think if a party comes before 21 this Commission acting in bad faith, then it can be 22 dismissed, and the reason -- I won't belabor it -- the 23 reason is truly an obvious one. This Commission can 24 only function if people before it assist it in making 25 a record, making a judgment on the merits. The NEAL R. GROSS court REPORTER $ AND TRANSCRIBERS 1323 RHODE ISLAND AVINUE, N.W.
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7 V y.['
9 261 4
3 h J1 l governments" have. never ' challenged - the legitimacy andi 1 e.. .
2' right-of,the Commission-to make its.~ decision here. In m L3 fact, we stand as interveners, not as dhcision makers.
'4~ We. stand pursuant to i particular.sLatutory provision 5 that invites'us,~Section,274 of the Atomic Energy Act.
6: .If a .p a r t y' comes 'before you and is 7' . destructive ~of.the proceedings.so that you can't .have f
8 .a' proceeding, and its purpose is to.be destructive of.
9 .the proceeding, I should think they shouldn' t be -in 10 i t'. Absolutely.
11 CHAIRMAN ZECH: Well, do you think.' tha L 12- there should be a dif f erent standard of conduct- as L13 applied to the governments as o p p o s e d.. to p riv a t.e :
14 parties?-
15 MR. BROWN: I don't think so. I t.hink the
.16 = governments have a special- invitation because there-
' 17 - are federal / state issues involved and those federal /
18 state issues ought to try to bring in state'and local-19 governments to the extent that it can help.all of you 20 in making your decisions. But I don't think there 21 ought to be a separate standard. I think everyone 22 ought to behave the right way in these proceedings.
23 CHAIRMAN ZECH: Thank you very much.
24 ~ Any questions from my fellow Commissioners-25 before we proceed with the next --
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-( eb' '
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'11 COMMIS SIONER :C ARR : I have-one.
s 2' . CHAIRMAN ZECH: Commissioner Carr? ,
a
?' ,
3 COMMISSIONER .C ARR: You said ~ that local county l'aws prevent unapproved plans-from beingz used?
4
- 5. MR. BROWN: I'm.sorry, if I-said that I'll' 6' clear i t' ' up . The local resolution, the' county 7 resolutions, which you'll see -in. the .materi al s , i t '.s L8 111-1983, prevents the ccunty f rom _ ' implementing. any 9 -plan _ except a plan 'that has been approved by the 10' county _ Legislature.
COMMISSIONER CARR: -So they have to provw 12 'these'ad hoc. responses;before they can use-them?'
13 LMR. BROWN: No, the whole nature of how .. th e L 14 ad' hoc response came up is because~there'is no county 15L . plan. By. definition, an ad-hoc ~ response would mean in 16 the absence of the plan. There just is no' plan ~and
-17 'will not be a plan for Shoreham because of the reasons 18 I explained.
19 COMMISSIONER CARR: How about for. an-20 exploding tanker?
21 MR. BROWN: That in particular I don't know, l
22 but there are plans for a lot of things' thera, <
23 emergency plans. There isn't one for Shoreham though.
24 COMMISSIONER CARR: If you had an emergency _
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.4 ;--
jc 11 ' anything aboutfit?)
2' MR. _3RCWN: If we had. an" emergency that.
i 3 .didn't fit an approved plan?. I'll tell yoia, f rankly, 4 'what ' they ? would do'in any other kind of emergency , - . I 5 don't know. _I do know what"they would do with respect.
6' .to Shoreham, .and that is they'do'not have an emergency-7' plan for Shoreham.
! 8 COMMISSIONER CARR: Thanks.
9 CHAIRMAN 7s E C H : Any other questions?' Mr.
10 Rogers?
11 ' COM14ISSIONER , ROGERS : Yes. I wonder'if you-
- 12 could just comment, to put things 'in perspective,'on -
.i E 13 the matter that's in the record of' January 16th, 1985 14 memorandum from the then Health Commissioner of ' the 15 state of.New York, Doctor David Axelrod, which he says-16 that the dedicated telephone lines connecting Shoreheni 17 with state officials l.were disconnected on advice of 18 counsel and urges that the telephone ' lines . be
.19 reconnected because the lack 'of dedicated lines 20 creates a vulnerable situation in the event of an 21 emergency at Shoreham.
22 Could you comment'on that in terms of how 23 you-put that in perspective with respect to the whole 24 issue of good faith / bad faith when the matter had not 25 been totally settled yet in any way and yet this NEAL R. GROSS j --
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- 1. e 'a. ,
39 .
11 Lac tion . took . p1' ace ? '
.2 LMR. BROWN: I .'..m going t o' have' 'Mr.
J 31 Zahnleuter, the counsel . f or -New ' York, ' to do it. , B u t' I-4 -do'-want ~ to make one. -careful distinction'. We'.re 5- talking good faith / bad f ai th . We're. talking'about' bad' 6' faith in a proceeding. 'The' issue.of~whether something.
7 ~ outside ^the proceeding is part'of some grand 8' discussion point that people can' quibble - over as .to 9 good faith'or bad faith isn't something,'I think, for 10 .the Commission to get into.
11 We have had with LILCO, outside the context
'12 of this, arguments f or years . LILCO, for e xa:fipl e ,
13 packaged documents and misrepresented them years ago 14 to be. the county's documents which resulted -in a 15 special investigation which the county would say is 16 bad - f aith, and many other things. There are .enough 17 "who struck Johns" in this, unfortunately,- to fill 18 volumes.
19 But insofar as that particular action' is
~
20 concerned, and any relevance it might have, Mr.
21 Zahnleuter,'the Governor's counsel, can respond.
22 CHAIRMAN ZECH: Please go ahead.
-23 MR. ZAHNLEUTER: Well, Commissioner Rogers, 24 the action that the state took with regard to
-25 disconnecting the RECS telephone lines, which are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15LANO AVENUE, N.W.
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. .- y 3 .30 1- 'de'dicated telephone , lines between ~ Sh'oreham and 's ta te'
.. i
'2 facilities,'was part and parcel.of the state's1 police
.3' power. The - 's ta te was within its D lawf ul rights . to i.
l 4- elec t ' .no t to participate in emergency planning- for 5- Shoreham or to cooperate' with LILCO in the-6 ' implementation of the LILCO' plan.
7 Mr. Brown referred to .a series of cases, 8- both federal and state, as ~ well as NRC precedent, 9 which clearly . established that the . st.ates have . the 10 authority to determine that what they choose to do in
' 11. the area- of emergency planning and the NRC has - ' no :
12' - authority to require a. state to. develop a plan such as 13' one.might'be developed in the case-of Shoreham.
14- ,
I recall the circumstances in 1985,- and1I 15 think at that point the power plant-was scheduled or 16 it was close to being scheduled, to operate at five r
17 percent power. I think'there was an inquiry regarding 18 the status of the RECS telephones. As.I recall also 19 at .that time, there were assurances from LILCO and 20 perhaps'some of you may recall LILCO obtained the five 21 percent license against or over arguments by the 22 governments that there was a possibility of an off--
23 site disaster from operation at five percent power.
24 We were assured by LILCO, and I believe the Commission ,
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31 1 necessary at five percent levels because the 2 possibilities of an accident and the regulatory 3 structure did not require any emergency plan for off-4 site matters.
5 The RECS telephones, of course, are part of 6 a response for an off-site dis a s tper . Therefore, there 7 would have been no need for the telephones in 8 existence to be in existence because of the 9 determinations that were made against our objections 10 regarding the telephones.
Il The federal and s t.a t e case law that I'm 12 referring to, Mr. Brown referred to, also the NRC 13 precedents in the very Shoreham case, does not require 14 the state to participate in the emergency plan and 15 memorandum that you refer to was part of the 16 deliberative process in government and Doctor 17 Axelrod's recommendation was not accepted. The 18 position that the state took was within its lawful 19 rights.
20 COMMISSIONER CARR: The implication of that t
21 though is that if they're authorized to go above five 22 percent, you'd put them back up.
23 MR. ZAHNLEUTER: I don't agree necessarily 24 that that would be the implication, Commissioner Carr.
\
l '
25 COMMISSIONER CARR: That's the reason you NEAL R. GROSS COURT REPORTERS AND TRANSCRf8ERS l 1323 RHODE l$ LAND AVENUE, N.W. ,
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.I took them.'down,:as I understood your statement.
! ,< x -2' MR. ZAHNLEUTER: N o ', the . reason 'why they; 3; were taken'down_was because there was no need for.them
~
4' because'atlfive-percent --: '
5 COMMISSIONER CARR: Tha t 's wha t: 'I ~ thought M 6 .you said.
t-7 ~MR. ZAHNLEUTER: -- we were assured that-8 there was no off-site response. But in addition, I? ,
9- think that' the state's position' was that. the LILCO
-10 plan was not adequate, was not implementable,.and we 11- opposed it, and ' . the: s tate' had tihe position 1. h a t ' s we 12 would not ' cooperate in emergency plaaning, .and .tha t.
13 was?within our lawful rights. .To have RECS telephones 14 in state buildings on state property connected to 15' Shoreham made no sense and was inconsistent. with' Lhot 16 position. Again, it's within the state's lawful 17 rights not to have the emergency , plan being 18 implemented by the state.
19 MR. BROWN: If I might, gentlemen, just add 20 one thing. This whole idea of bad faith is something, 21' when we look a t- the proceeding and the sanction 22 against the governments, is something to be looked at, 23 at the particular conduct and the record of evidence 24 before the Commission, the behavior of the parties and ,
25 what the Board said and did.
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- 1
- Outside_ the proceeding,< .if I infact, L i f -- -
2: :it!'s'not the ces- : here , J btit to. illustrate for the sake' 3 . o f .. ; c o'nc ep tuali zing 'this, ?if , Commissioner Rogers ,
~ 4; there were.in' fact a group of people - runni ng 1.n . somd .
-5' s ta te ,in this country against a particular nuclest 6 .
power plant, .and that' was ' the. only . subjec t on . which 7L they rari for office was political opposition to IL , .
8- had no' saf ety ' merit whatsoever and everyone would'
~9 1 stipulate (there was no safety basis, they would;have
.10 ' the right to be elected if their electorate obviously' ,
.i 11 wanted it. And they would have. the right to come i
. ~ 12 before the Commission and'make an argument'as: long'as 13 . they . liv'ed up to your. rules.and they did it.inLorder 14 to-assist you, whatever their motivat: ion was. If it f 15 was to be- against nuclear power or. that plant or- Lo-l l
16 raise Cain, they would have the right'to do it. But
'17 they. don't have the right to destroy your process, and i s
18 that's the distinctica between the two.
i 19
~
CHAIRMAN ZECH: All right'. Thank you-very 20 much.
21 If there are no other questions, Mr.
22 Zahnleuter, you may proceed.
23 MR. ZAHNLEUTER: Good afternoon.
24 CHAIRMAN ZECH: Identify yourself, please, 25 and tell us who you're representing for the record, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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1 J
l l _ t.
"' -34' .
I il p1~ ease. 1 y
2 MR. ZAHNLEUTER: .Thank you,.Mr. Chairman-and 3 members of the Commission. My name is Richard J.
~ '
4 Zahnleuter and I am- the' ; Depu ty Special . Counsel ' to.
5 Governor Mario Cuomo.
I 6 On b'ehalf .of the Governor and-the _ state'of ..>
l 7 New-York, I will-stress briefly that there is no basis 8 for the imposition of any s anc tio n ' ag a i'ns t the 1
9 . governments. The government's have- acted responsibly .
10 during the-seven years of Shoreham litigation. In the
'11 multiple . proceedings that= the governments have 12 . participated in, the governments have diligently 13 worked to insure that. NRC requirements are . complied '
14 with. And,.as Mr. Brown made. clear, the governments-15 have won significant victories for public' health and 16 -safety in the process.
17 The Board majority simply ignored these 18 contributions. There was no basis for any sanction 19 and, in particular, no basis for the severe sanction 20 of. dismissal of the governments from all of the 21 Shoreham proc'eedings.
22 In the concluding initial decision, the 23 Board purported to make findings on matters that had 24 no basis in the evidentiary record, such as the 25 alleged motives or strategies of the governments. For NEAL R. GROSS' COURT REPORTER $ AND TRANSCRIBER $
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.m ( -
pr 1 R '
. i: -
35 3.
r ?. E ill ' example,. there is no? evidentiary' record. that would.
+N
.y ., , ,2'
< support the allegation tha t1 the- governments ? intended a .y .
_ m:' .
! 3~ - to subver t- the NRC. processes. for ? political . purposes .
\-
(.
i 4 ?Yet, the '. concluding initial decision makes precisely' 5: this ~ allegation. To impose sanctions on this ; basis, there ' must. be evidence sin the" record ' and - tihere .is'
~
6 7 none.
i? '8' Next I'will briefly address the issue of '. the L , j 9 .' production of emergency plans ' pursuant: to LILCO's'-
-10 discovery requests in- 1982, ' 1983 and 1988'. The 11 Commission needs to ' be: aware tha't the state oC New'-
.12 York was . not involved in ' the 1982, -
'83 ' document t.
i; 13 production. . The s tate of New' York did not , ac tively uyc .
14 enter ' the proceedings until 1984. The state, thus, 15- had no obligat-icn - to respond to LILCO's 1983.and.:1982 16 discovery requests a t- any time, yet the' concluding 17 initial decision ignored these facts and accused the ,
l sl 18 state of f ailing to meet discovery obligations 'at a
'I 19 time when-the state was not even a party in the case.
~
20 Since the state had no obligation to respond
~
21 to the 1982 and 1983 requests, such findings by the 22 Board just make no sense with respect to the state of 23 New York.
24 The Commission also needs te be aware that 25 the Board, without. support in the underlying record, NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RNODE l$ LAND AVENUE, N.W, WA5HINGTON, D.C. 2000$ (202) 232-6600 (202) 234-4433
( i
I I l
[ g _ ,
g
, , 36'
, o
~
B !1: . erroneously ' accused;. the ls tate of ~ demonstrating bad.
2' :f aith L'in taking> certain actionc and. making ' certain ps , , 3
+
[ ,
3 ': -decisions' . .One of the; actions relied = upon by the r
a ti ;
L4;: Board: was. a simple . oversight { by;; the state. .
The. state 5 sent' a' le t ter . f rom. the .. go v ernor: - to the J Commission
-6 without also sending-it to.the service, list.
7- The . Board never ~a'r t i c u l a t e d h o w .- that 8 oversigh t Lcould - . cons titute ; bad f ai th supporting
- 9. dismissal .f rom' the . entire proceeding. .
.Noreover, .
10 neither ' the Board :nor the' parties ever. had an 11 opportunity to raise or address the issue :in' any:
12- d e t a i.1:. prior to i ts sudden appearance 'in : the
~ l -13 concluding ' initial . decision. Had the ; s t' ate , had such
.14 an opport. unity, athe state would have - shown' that - this-V t 15 y was n o t- an attempt to secretly communicate with 'the 16- Commission.
~
.17 On che same day that the state sent the r r
18- letter to~ the Commission, the state: released the A 19 letter to the media for all the world to know about, e
20- On the following day, Long Island's primary newspaper, if 21 which is Newsday, printed an article that quoted-t.
1N 22 extensively from the letter. LILCO and the public l?
23 were certainly aware of the letter. There was no bad 24 faith.
25 Another action relied upon by the Board as a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS j
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1 b_______._i_________ - - - - - _ - . _ . _ - . . _ _ _ _ _ _ _ - . - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
. wi&F ,.
, '~ ~; ~- --
, Mt,5 N ML 37--
a+- t ..
g'
!& Demonstration ofLbadLfaith wasithe alleged political
, k '
I. M - 2 ra tional'e I f or' the- state's decision' .to . oppose ' the-H 3 licensingEof Shoreham. First,-this purported issue is q'j"' a , e.
4' ' irrelevant'. The issue,is whether LILCO co'mplies with-5' NRC. regula tions , not why~ ' the .s t a te f ormulate s and
- q '3
- o- .
6 fimpl eme n t:3 'a cer t ain - policy' with . respec t to' the 7' licensing of Shoreham.
b I,f
.s.
-8 Second, the~ Board's sugges tien tha t the 1
- i. .9 s ta te ' . opposed the licensing of Shoreham as'pisrt of.an 10 overall plan to thwart and subvert.the NRC's processes 11 for' pol'itical ends-is without basis"in the evidentiary 12 record and, more emphatically, preposterous.- As 'the 13 L1.986 letter to the Commission, that I just referenced, 14 prominently stetes the state's decisi.oneto oppose the 15 licensing of Shoreham was based on at least two
- 16. things, the findings of a prestigious independent L 17 panel known as t.he Marberger Commission which inc3uded r <.
18 representatives of the NRC and ' FEMA and extensive 19 studies which led the county t.o conclude that it would o ~
20 oppose the licensing of Shoreham.
21 CHAIRMAN ZECH: Excuse me, Mr. Zahuleuter.
22 You have one minute. But Mr. Brown, I don't think, 23 used all of his time.
24 SECRETARY CHILK: Did not use all of his
, 25 time.
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y - - _ . _ _ _ , _ _ _ _ - _ _ _ __ -- -
r 1 4 .- ,
.38
- n: . . .
1- CHAIRMAN ZECH: S o ', h e has,.what, a' couple =
< - 2' .of minutes more?
L3 ' SECRETARY CHILK: He has four more minutes :
4 lefts l- 5- CHAIRMAN ZECH: Four more minutes. ~So, you' 6 .may --
l' . 7 .MR. BP,0WN: I'll yield.
8- CHAIRMAN ZECH: --
add those two Mr.
9- Zehnleute , .if.'you prefer to do that.- E Id So, Mr. Secretary, take note of :tha t y-11 please.
12 You may. proceed.
13 MR. ZAMNLEUTER: Okay. Thank- you, 14 :. g en tl emen .
.s 15 As .I was saying, the. letter to the 16' Commission that I just referred to prominently' states 17 that the state's decis' ion was based on two _ things 18 basically, the Commission that studied -the matter,
- 19. entitled the Marberger Commission, and also the 20 county's experts that also studied the matter. This 21 decision was grounded in an effort to protect the 22 public health and safety. The Board's notion that the 23 decision was designed to suit political purposes is 24 unsubstantiated and it's wrong.
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39 1 included the state's decision that Commissioner Rogers i
2 referreo to 'oefore about disconnecting and returning
.i 3 the LILCO the dedicated Shoreham telephones located in 4 stete buildings on state property. Also, the Board
( S relied on. actions. relating to the state's decision to l
6 retain only the copies of the LILCO plan that the I
, 7 lawyers needed for li".igation and the state's dec1slon !
8 to not let LILCO use certain state facilities as 9 relocation. centers in the LILCO plan.
10 Again, the Board never articulated how these 11 decisions and actions could support any sanction, much 12 less warrant dismissal f rom the entire cese. These 13 actions are all within the lawful rights of the stale,
?
14 as I've stated before.
15 In conclusion, there is no basis for the 16 imposition of any sanctions against the state, the 17 county or the town. The Commission,should direct the 18 Board to reassess'its determination on the merits of 19 the legal authority contentions by taking into account 20 the written testimc,ny t- h a t was filed by the state 21 Disaster Preparedness Commission chairman and the 22 county executive.
23 Thank you. That concludes this portion of 24 my presentation.
25 CHAIRMAt1 ZECH: Thank you very much.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RMCDE 15 LAND AVENUE, N.W.
WASHINGTON, D.C. 20005 (202) 232-6600 (202) 234-4433
, C.
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' 00 ?'
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+ 3 Let m'e - just 'ask . yos, and Mr . . Brown. .may '
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but you _.
o
, i;
~obviously disagreed with theiLicensing Board's o'rders.
+ ."r '3 O c,: ,
L Y 4 And .I . think, . Mr. Brown ,-lyou ref erred to a process O:
- -5 whereby it could be appealed 1'ater. If1 you believer 6 . tha t1'you - wer e ' so f fundamentally. 'af f ected by thei Y
- 7. . . ~ proceeding, why did=you'not seek interlocut. cry review '
o 8 of the order by referrir._,the~ matter to the1 Commission 9 or requesting.an appeal?
'10 MR. BROWN: Well, 'M r . ' Chairran , . you ' re -
11 pointing .out what in fact people ' conf ront 'in ' that
' situation'as several options. There was the option'of
13 ' interlocutory . relief ,. seeking it, not getting-it, I'm 14 afraid'to say, but seeking.it.
'15 CHAIRMAN ZECH: 'You'could have sought --
'16 MR. . BROWN: No, i t '.s frowned upon so-17 -strongly .at the Commission that it's essentially..
-18 impossible.to get. 'But you are correct, we could-have
=19 sought interlocutory -~
l20 CHAIRMAN ZECH: Regulations provide for 21 that, I think.
22 MR. BROWN: Absolutely.
23 CHAIRMAN ZECH: Yes. Go ahead.
24 MR. BROWN: There are extreme situations --
25 CHAIRMAN ZECH: Right.
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- - _ _ . _ _ _ _ _ _ = _ _ _ _ _ - _ _ _ _ _ _ _ _ - _
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'3 interlocutory; appeal "is an.. option., eYou ' re absolutely '
v
. I t' ' s' - frownedL upon. , We, in fact,'. tried to .6 4 correct. -
.ge t interlocutory " relief of, the: 25 percent E power Si
'6E
. license and.it was. summarily rejected :several" months
' 7 ago. It's something'that is:very --
q I.
8 MR. LANPHEPs: In January.
9 MR. BROWN: In January. Very seldom is theib 10 an' achievable end to'get i t ,- though it '. is' anl- op tion ,
- 11. The second option is to' wait until the end etnd getla 12~ final ~ order. The third option, which.is lawful,:. . ii
' 13J thec optio'n that we chose. It was a matter of judgment 14 and.the reason for our judgment is straightforward.
15' We had filed our objections and we filed our of f er ' of proof on the 13th of April . It was eigh t- 1
- 16
~
17 full' weeks. We couldn't get an answer, a ruling from
.m 18 'the Board for eight weeks During.that eight' weeks,-
an untenable impasse had.come-about. We were having 19 p
20 telephone conference calls with the Board and 21 essentially being condemned for not being forthright f-22 in giving answers at depositions. The answers were 23 given. It's just that LILCO wasn't satisfied with the 24 answers. Our people were saying, "Our response is not 25 pursuant to a plan, so I can't say what we'll do, but NEAL R. GROSS COURT Rf>ORTERS AND TRANSCRIBERS 1323 RMODE ISLAND AVENUE N.W.
WASMfMGTON. 0.C. 20005 (?02) 232-6600 (202) 234-4433
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- l' IL can say ' that - it 'll be ad : hoc 1inithe; best ; paisibie
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'uNder the . circums tances,. - wha tever - they be. I don't .
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- .1: .3- know'what-we do_and I can't speculate." t
- L1LCOEwould' s
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'4- run- to the ~. Board f or rulings . The;L rulings were: >
.5- severe, sending 'us back , ' cornpelking f urther answers .
6 It go t . t o' the'. point - that "we, saw . that1 this 7' confrontation: would turn into a something. of! such" an .
. 8 ' extreme nature that it was ~ absolutely unproductive.
9 We neededlan answer and ther way to get Lhe' answer was lr 10- this. technique, which is accepted by the courts and .is 111 ~ not something that has to be done often. TL's, as the- -
12 . courts.say, well established;in the law as an' option.
13 We chose it as -- the first ' time we ever chose it'in 14 -any NRC proceeding, excep t 'ac tually with t h'e -
It was twice we ' f ollowed : that- -in phase t 15 sanctions.
'l 16 one.
'17 CHAIRMAN ZECU: Dp I understand it was an
'13 option that you chose? ;
.'19 MR. BROWN: Right.
l 20 CHAIRMAN'ZECH: -- a strategy, if you will, 1..
21 that in order to sho'w that you disagreed with the 22 Board and --
23 MR. BROWN: The Board's interpretation of 24 the new rule.
1 25 CHAIRMAN ZECH: As a result though you l -.
i NEAL R. GROSS 1 COURT REPORTERS AND TRt.NSCRIBERS 1323 RNODE l$ LAND AVENUE, N.W.
- WASNfMGTON, D.C. 20005 (202) 232-6600 l
(202) 234-4433 1.
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- , ; indicated"topthe..Boardirather. plain 1M that you did ' 4 not 1 Qy f -
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.MR . BROWN: ;In order to get a .. Iinal ruling 1 1
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4* 6cn : the f discovery order so that we could ^ appeal .the?
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CHAIRMAN, ZECH: 'I - see..
'But i t . .- w a s "a .
e ,_
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. strategy,that you--- ,
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MR. BROWN: Well, the word Estrategy" .is 9;' inappropriate' 'f or me to: use in light ofithe. fact ~ t.he'-
u, j~
-10 Tword condemned us.for strategies.
,1 o 11 '
' CHAIRMAN' ZECH: You' can use the. word. I,
, 12f don't --
t 13 , MR. JBROWN: I'm sorry,_ I mean . strategy 'in i
14 the wholesome sense of it. It.was --
~
15 \'u CHAIRMAN ZECH: !Well, so do I. -There's- ,
4
,16 nothing wrong with strategy, I don't think.
-17' '
'MR. BROWN: We had'.the-three options. There
'18 might have been four or' .five ' options actually. The 19 only one that we saw that could get us.an answer and 20 out of an intractable fight-with the Board. We had.no
[1 ruling for eight weeks. We wanted to get'this behind i
.i .
22 us. We felt profoundly the Board made a mistake and, 23 as'I have said, months later the First Circuit Court 24 of Appeals, I believe we're reading correctly' that 25 opinion, substantiated our position. We wanted to get NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBER $
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~ CHAIRMAN ZECH: LTh'ank you-very'"much.
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.Other questions? Commissioner)Carr?
hf MM&b c5 COMMISSIONER ' CARR : ,0You 4 chos e a.; N;a a' ~ crude 'but lN Ql, . . c y ~~
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. serviceable 'rne thod.
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1 Bs COMMISSIONER CARR: I said it quotes'.here in-
- c 9l your.-- it's.a' crude but serviceab1'e rethodlyoc chose.
u, & o-. . . .
4;;. i 10
, MR., BROWN:
I don't think it said.' crud 6 'did
'11 i t?.- If it did; it must mean in the who]esome sense. - '
11 2-- - too.
.I
)
- 13. -COMMISSIONER CARR: I.'m' quoting your quote.
14 CHAIRMAN ZECH: Are there a n y ..o t h e r
- 15. questions?'
4' '16 .
COMMISSIONER CARR: Page 13.
?. ,
1, '
- 17. -
-CHA7RMAN ZECH: Mr.' Roberts? , ,
- 18. MR. ZAHNLEUTER: Excuse rne ,- Chairman .Zech.
, , 19- CHAIRMAN ZECH: Yes?
.1
' ~
l20 MR. ZAHNLEUTER: May.I add that'in June of
\
' 21 '86, the governments did' attempt to take an appeal to '
22 the Appeal Board, but we were unsuccessful.
23 CHAIRMAN ZECH: All right. Thank you very 24 much.
25 Mr. Rogers?
NEAL R. GROSS COURT REPORTERS AND TRANLCRf8ERS 1323 RMODE ISLAND AVENU(, N.W.
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y, ,
45 1 All right. If there are no further m '
2 questions, then I believe they have a minute or two to i 1:
3 add on to'the rebuttal time, Is that right?
4 SECRETARY CHILK: Abcut two minutes.
5 CHAIRMAN ZECH: About two minutes? So, you 6 have 12 minutes rebuttal ti:ne rather than ten. We
\1 7 thank you very much. Appreciate your being here with 1
8 us today. 4 9 14R . BROWN: Thank you.
10 CHAIRMAN ZECH: We 'll hear f ro:a you in a Cew 11 minutes. A 12 MR. BROWN: Thank you very much.
13 CHAIRMAN ZECH: And then we'll cu13 on the
]4 parties in favor of the sanction.
15 I understand, Mr. Irwin, you will go first 16 and if you would please state your name for the record ,
l 17 and who you represent and how you've divided your 40 18 minutes.
19 MR. IRWIN: I'd be glad to, Mr. Chairman.
20 I've got my name tag out. As you can see, I'm Donald 21 Irwin with the law firm of Huntley and Williams, 22 representing Long Island Lighting Company.
23 To my immediate right is my partner, W.
24 Taylor Reveley, III, who has beer familiar on close to 25 a day to day basis with the Shoreham plant and its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
WASHINGTON. D.C. 20005 I202) 232-6600 (202) 234-4433
9 4 ,
45 J
1 ;1icensing=since 1971 and is the senior catside lawyer 2 associated with the case.
3 To ny immediate left is Ira L, Freilicher, 4
4 Vice President of Law of Long Island Lighting Company.
5 Mr. Freilicher, as a member of the company's senior q l
b 6 . management, may be able to respond more 7 authoritatively to some issues than anybody not with )
8 the company.
9 To Mr. Freilicher's left is John D. Leonard, , ,
10 Vice President of Long I rJ. a n d Lighting company's 11 Office of Nuclear Operations. Mr. Leonard is in 12 charge of the Shoreir am plan t . Prior to that he was en I
13 employee of the New York St.u ce Power Authority and was 14 in charge of the Fitzpatrick plant. Pri.or to that ne 15 was in the nuclear Navy for a long and distinguished 16 career.
17 CHAIRMAN ZECH: Tell us, before you proceed, 18 how you desire to divide up your 40 minutes, please.
19 MR. IRWIN: I propose to take 30 minutes.
20 Mr. P,eis from the NRC staff will take ten minutes.. I 21 was informed by the Secretary's Office that rebuttal 22 is not customary for respondents here. I accept that, 23 although I notice that ten minutes is a rather long 24 period for rebuttal. If there is any reason -
25 CHAIRMAN ZECH: They have 12 instead of ten.
HEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVINUE, N.W.
WASHINGTON, D.C. 20005 (202) 232-6600 (202) 234-4433
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$$Q ' , < v .
'31TM -;2 ' . need- to make. : an extraordinary request given tha t j ;;, ? ( .c
@ ' .y i' 3 length of time, I L will do so. I can't anticipate-
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' { .5 -( CHAIRMAN ZECH: We '11 ' consider 1it ;if .you -
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.makejit. .You.may proceed.
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L.7.; , MR. IRWIN: .Thank'you.
. 8- Gentlemen, some-13 years ago-in 1976, Long
- i. ..
l0 k ; ,t ; fi ' Island Lighting. Company filed its operating license-9; 10 application for the Shoreham~ Nuclear Power Station.
Ni 11 Hearings began . in contested ' issues some seven years "t.;
12 ago, in the spring: of 1982. By the spring of.1985,
-c i 13 the' plant was physically complete. By the. summer of 14 ~1985,: all safety reviews had been completed and the-15 plant had been licensed to operate at-low power.
q 16 .Since 1985, all issues relating to the 17 feasibility of emergency planning, can it be.done if 18 organizations'are,willing to do " , have been resolved-19 in LILCO's. favor.
^0 Three and a. half years later, the ' plant is 21 still not operating. Why? Because of the issues that 22 we are here today to discuss, because of an issue-23 which wa= at one time called legal authority. It's 24 now been transformed to the concept of realism, which 25 is a synthetic issue, a creation of the governments of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE, N.W.
WA5MINGTON, D.C. 20005 (202) 232-6600 (202) 234-4433 l- - - - - __ - _ _ _ . - _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . . _ _ _ _ _ . _ _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ __
Q[
b ,
.~) , -481 L.; ,
- 1. ' Suffolk County,. New : York LS tate 'and . their . silent -
^ 2 partner, the = town of Southampton, an. issue which has 3- had no basis in fact since 1985.and is-entirely within
. 4 .the power of these organizations't6 remedy.
.5 It is important-to recognize the. difference 6- between this' issue and ordinary-issues that confront a 7; licensee or an applicant. Those issues:are factual.
'8 You wrestle with them, you bring the facts to light, 9 you try to-deal with them. These issues are :mrin 10 created. They deal with intent, they deal with
-11 purpose.
12 People in charge,of these organizations had ,
13 a purpose. They took positions, they've changed their 14 positions, they've modified them, adjusted them,~ tuned 15 them over time for one purpose and that.is to' keep'in 16- place their ultimate ability .to interpose their 17 authority under state and local law ag.ainst the-18 overall federal supremacy of the NRC in a matter of 19 nuclear safety.
20 The issue is different in a second respect.
21 Because it is human created, it can be modified by 22 humans and it can only be created by a particular 23 quality of human or characteristic of human. That is 24 public officer holders, people who wield a public 25 trust, to protect their citizens.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER 5 1323 RNODE ISLAND AVENUE. N.W.
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m, 49 p.
p
- ( ' 5 1" These" issues., 'which . have-' been refined and-2- ' honed and t caused ~ this Commission's' litensing boards
- ~
3 almost' no end,of' trouble,'have paralyzed.the plant for.
4 three:and"a' half years.
f
. 5: In- the . meantime,- durin'g the course of the 6 seven ; years that. emergency . planning issues were at 7 large, not only the , issues. today, . but. earlier issues 8 have been before the Commission,:a number-of' matters,.
9 a number of: actions have ' taken place.. Initiated by-L ,
10 Suffolk County, it-made its decision in.early 1982-to L
11 oppose the piant and more recently by New York State.
-12 It's worth going through.them^because these 13 issues, some'of them have.taken place within the four 14 corners of the licensing proceeding, others have taken 15' place outside those four corners. But it is
'16 emphatically not the case, as Mr. Brown asserted, that.
17- ~ a bright line must- be drawn between those issues 18 because those ' issues which took place outside have 19 been imported into the case. Those issues outside
~
have been taken sometimes on the advice of counsel:who
~
'20 21 are involved in the case. You cannot separate them.
22 Let me go through a few of the high points 23- of these issues. First of all, in the spring of 1982.,
24 as Mr. Brown indicated, Suffolk County fired its own 25 internal emergency planners and revoked a contract NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RNOOE ISLAND AVENUE, N.W.
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l1 l\ ~. ) 'o 50
'b L1- , with LILCO to do emergency. planning for.:the plant. It-
,- t 2- hired a: group .'of- ; ou tside = exper ts ,' spent a lot ~ of '
~
, 3 money,_ had them - do an analysis tha t. ~ involved. ' two cl
'4- . predicates. One, a 20. mile EPZ, not a ten mile EPZ.
+
5 Two, inon-exceedance of . EPA 's standards in ' even the l
-6: most fast. breaking, mos t ; . severe accident. Well,=the: _
- 7. results of such a study'are a foregone conclusi'n' o for
-)
1 "i
S' any plant in a densely settled lpart o'f the country and: ,l
- 9. .this study reached that conclusion.
10 The results of that' study'were litigated for
'll the next three years, and at-the. outcome of it, LILCO 12 prevailed. But in the meantime, the government .' of
~
13 Suffolk County, since j oined ' by New York State,
- 14. wrapped- itself in a cocoon of ignorance about the
'1'S results of the litigative process and. about the j 16 updating of'the knowledge-basis and adhered to public- j
'17 policy decisions embodied in resolutions of the county 18 which had been taken in 1982 and 1983, before that 1
19 basis had been refined and exposed to the public 20 through the NRC process. l 21 Within the NRC process, Mr. Brown, in fact 'j l
22 has alluded to this, the county provoked the sanction
- l 23 of dismissal of issues by the licensing board rather l 24 than proceed with what were called evidentiary 25 depositions. I need only say a couple of things.
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1 1______-----____--_-___--_ _ _ _ _ - - - _ - - _ - l
51 1 First of all, the decision by the Licensing Board was 2 taken not precipitously but after long and careful j
3 process which included written submissions by the 4 parties beforeh'and on the permissibility of the 5 concept of evidentiary depositions.
6 It also would not, as Mr. Brown asserted, 7 have taken a public process behind closed doors.
8 Depositions would have later been subject to public 9 questioning. There's just no question about that.
10 The county deliberately defied the Board, said they 11 wouldn't go ahead, and the Board invoked sanctions.
12 Sounds familiar.
13 Th ird ,- Suffolk County's government withheld 14 facilities, resources, legal authority, pbrsonnel from 15 LILCO, from its own people which are there, paid lur 16 by the taxpayers, for the protection of people in 17 emergencies. Withheld . schools, day care centers, 18 hospitals, nursing homes, everything, communications.
19 Not only did that, but imported the fact that the 1
20 facilities were unavailable into the licensing case.
21 So, once again, I don't know whether that's outside 22 the case or inside the case, but you can't separate ,
23 them in my book.
24 In addition, the county, through means 25 direct and indirect, convinced owners of hospitals, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE. H.W.
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'l y . c
+. ; 53, !
c E- :1? day care cente . radio s ta tions ;, contractors, not-to, l s
2 participate) with LILCO "in its emergencyL plan. There 3s 'was one. contractor, _ Bauman_ . Bus Company , - which ' was 4- brave enough to contract .with LILCO and. stick by its 5 contract. What did the county do?= -I t canceled its .
6 ! contract and threatened, in fact, to cancel a broader 7 -set of: franchises that Bauman Bus Company' held until 8 they apparently received advise that that wa s ' ' no t. 'a 9 goodLidea.
10- The county went. further yet, it enacted an
' 11 : unconstitutional, criminal ordinance ' a t. the- end of 12 1985 in order to try to derail - the 1986 emergency 13 planning exercise. That ordinance would have . tuined 14 LILCO employees and federal employees into common 15 criminals. For what? For trying to participate in an 16 exercise, the absolute right of which.has been upheld 17 by federal court in Long Island.
18 New . York State joined Suffolk- County in
~19 1983, as Mr. Zahnleuter said, at the end of '83. His 20 characterization today, however, is inconsistent with 21 the characterization of the nature of the decision.
22 which was given by Mr. Axelrod before the Gleason-23 Board this summer, which in fact was the first 24 explanation anybody had ever gotten. Mr. Zahnleuter .
25 says that it was based on the Marberger Commission NEAL R. GROSS COdRT REPORTER $ AND TRANSCR18ERS 1323 RHODE ISLAND AVENUE, N.W.
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.-_-_.__________--------__--._---.-__.----__--_..__.___---_-_--._--._._____----_____._--_-.-.__-_.--_._-.-_---_.--_---__.--.____--..__---._--__-----_-----.__-n
+ .
53 1 Report and the 1982 studies of the county. Doctor 2 Axelrod said that it was based on a reading of policy 3 statements by Governor Cuomo and then County Executive 4 Falpen. But in any event, it did take place behind 5 closed doors. Nobody ever heard that except the 6 members of the state government who were 7 participating. Certainly nobody from LILCO was ever 8 invited.
9 Subsequently, New York State has frustrated 10 any attempt by LILCO to develop ingestion pathway 11 planning for the Shoreham plant. We have had to go 12 back and forth between state plans, county plans, 13 refusals to authenticate documents, refusals to 14 produce documents that have utterly confounded the
'15 company's efforts to supplant the state in this area.
16 Finally, and perhaps most importantly, as 17 various of you noted, the state deliberately disabled 18 its own dedicated emergency capacity to communicate 19 with the plant through the Radiological Emergency 20 Communication System line, ripped it right out. That 21 action was apparently taken on the advice of counsel.
22 Once again, that action may have been outside the 23 litigation, but counsel advised it, technical experts 24 opposed it, and the effect of it was imported into the 25 proceeding. The state used the fact of that to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE N.W.
WASHINGTON. 0.C. 20005 (202) 232-6600 (202) 234-4433
~
g 54 J l' 'sugges t .that ' LILCO could not communicate adequately-
- '2- 'with-the state.
s'
'3 The town of Southampton,-the town'has been
~4 along f or- the . ride. The town has filed pleadings, 5 allowed' its name. to ' be signed. It -has never 6- disassociated itself from the state or- from the-7, county,-has been a joint enterpriser with them --since 8, 1983.
9 Throughout this process, the interveners 10 .have been; told time and again that they may advocate 11 their! views, but they may not disrupt NRC ~ processes'.
12- This has - come from the Commission in a series of 13 decisions that have been becoming more and more 14 strident ever since 1985. CLI 86-14, right before the 15 exercise, was probably.the first of them. It's also-16 been stated by at least two federal courts, the-court 17 that . has decided the so-called Cope Case, and the t
18 course that decided the case ca the exercise. But the-19 county and state have had a difficult time apparently 20 discerning the line between advocacy of a position and 21 u:' mately trying to control a process.
22 This is a longstanding pattern and this is 23 the pattern which confronted the Gleason Board when it 24 took over in the spring of this year, trying to 25 administer the application of the realism rule to the NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBER $
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- l' Shoreham.' case.
--2 . CHAIRMAN ZECH:, The spring of this=last1 year-
- 3. 'I'think~you mean, don't you?-
4- 'MR.'IRWIN: -
Yes,-sir, the spring of 1988.
5 CHAIRMAN.ZECH: *88?'
-6 MR. IRWIN: Right, sir.
7 CHAIRMAN ZECH: Thank-you. It*s.-1989 now,.
8 I think.
9 MR IRWIN: I sure hope so.
-10 CHAIRMAN ZECH: You may proceed.
11' MR. IRWIN: The handwriting had been on the-12 ' wall about what- realism entails for quite some tirte 13 before the- Gleason Board took over. There's no 14 question about what is involved with realism.
15 First, an assumption that responsible 16 governments will exercise their best efforts in an 17 emergency.
18 Second, a presumption, increasingly clearly-19 stated as time went along, that utility plans would.be
~
20 followed if they were acceptable unless rebutted.
l- 21 Third, an assumption which appeared in-g 22 licensing board decisions beginning with the Margolis 23 Board's decisions in 1987 and was continued by Judge 24 Gleason, that he expected interveners to be 25 forthcoming in the production of information at their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RNOOE ISLAND AVENUE, N.W.
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56- -
.1' Ldisposal concerning the. questions of-implementability-A 2 'of.a plan,_how in. fact interface-could~be conducted o'r-3 .it's practical,.because I know that Suffolk County and -
4' New York 1 State do' not like - the - word "interf ace , ": but 5 the fact-of the matter is it is a process and-not.a r
6 ceremony.
7 The Gleason Board, . when it' took over in the 8 spring of 1988,.did no t ,- as ' interveners -have been ~
9- saying, demand that the c o u n t y._ p r o d u c e an -emergency-'
10 -plan. What the' .Gleason Board demanded ' was- tha t- if 11 they wished 'to rebut the presumption .t ha t. the county 12 and state would follow LILCO's plan, the coun ty and-13' state must either produce.a plan or other information-14 sufficient to show how their resources would be used.
15 The Gleason Board made explicit, as the Commission had 16 in the realism rule,- and as the Margolis Board ~ had 17 earlier, that for the county and state simply Lo .- sit 18 mute would be unacceptable.
-19 That- was the background against which
-20 discovery commenced in March of '88. What began was 21 an almost immediate and multifarious stone wall.
22 Depositions were not answered, requests for extensions 23 were filed the day before the interrogatory answers 24 were due and then when the answers were filed they 25 were general objections.
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57
+ ,
1 .When . deponents were asked. to a p p e a r..J f o r
'2- depos i tion', only Mr. Halpen of the county-and Doctor, ,
3 Axelrod : . of - the: sLaLe were .- prof f ered. Mr. Heilpen :
+
4 prove.d to'be less 'than f ully .inf ormed abou t the
-4
.5- details' of.Suffolk County 's ' eme rgency planning.
6 Doctor Axelrod, 'while - a'd'mirably informed, was 7 instructed repeatedly by counsel not ; to answer 8- questions beyond counsel's concept of relevance. Both
~
9 depositions were systematically obs truct ed. in' a 10 f ashioni that compelled Judge Gleason . in a'May 10 11' prehearing ~ conference to warn counsel for the county
'12- and- state not to - continue their. ' obs tructionis.t 13 tactics.
14 The- same thing ' was true with documents.
15 LILCO's requests f or . discovery included requests for 16 production of emergency . plans back. to .1982, - '83.
17 These requests were objected to largely on grounds of 18 relevance. This, however, has . been a continuing '
19 pattern for all boards to say that. emergency plans.are 20 relevant.
21 The long and short of it was there was an 22 increasing build-up of requests by LILCo, denials by- .
I 23 the county and state.
24 The county and state filed two pieces of 25 paper, one their April 13 objection, and second their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AYENUE, N.W.
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4 s -
.o l' June-9 notice,.which brought the issue to a head. Mr.
'2' ' . Brown is ' correct.. that
-'t' hey brought ' =it - to a head. ' Bu t-3'. the;.. grounds ' on which they brought.it to a - head , ~are
'4! not, LILCO believes, as'he'wouldshave.them.
5 First, as I have indicated - earlier., the 6
Board was not compelling- the county . or state to 7 produce a plan.. It was not compelling them to produce 8 anything they 'could - no t produce; What it was 1
--9 compelling them ' to do was - to produce facts at their-10 ' disposal, nothing in the Board's orders which 11- compelled witnesses to testify beyond their-knowledge.
12 - That was all LILCO was asking them t o' d o .. But the 13 . objection and' notice of the. county and the transcript 14 of the June 10th prehearing conference made clear that 15 the county was.not going to go beyond its position,
~
16 that there - would be no interface,- no delegation, no 17 cooperation, no plan, and nothing beyond.that.
18 The upshot was that the county and state 19 simply were defying the Board's power .t o produce 20 information necessary to shed light on the problem-21 intended to be solved or at least explored by the 22 realism rule.
23 The county and state chose to simply defy 24 the Board rather than to take other routes which have 25 been explored in questions and answers with Mr. Brown.
I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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59 ' O s .,.
p '
L1- , The. county' c o u l d ', in fact, have sought an-n .
interlocutory appeal and, inifact, over the course ~ oE s~
-2 -
p.
P 3; the las t .seven years , ~-I don' t ' know how many times.
L- 4 ' interlocutory 'appesis have been sought'in- this case, 5 but:.I'm sure they number in the dozens _and.the' county_
6- has. taken its ' share of .them. The county. has. not' 7 h e s i t a t e d ,;- when it ' thought its ;i'nterests were 8' threatened,- to go outside the Commission' and - go . into .
9 federal district court to try to' enjoin proceedings.
10 In fact,-one cphase of the low power case was enjoined 11 in 198 5,- I believe, .by the- county. So, the counLy 12 knows how to take other remedies.
13 Secondly, the remedy : ref erred to by Mr.
-14' Brown, namely defiance of what a board.has ordered-on 15 discovery, is an argument with a couple of problems.
16 The first is that the issue which is to be brought to 17 a head is not the general is, sue of the validity of the 18 fundamental argument which the Board-is implementing.
19 In other words, what the county and' state apparently 20 wanted to do was-bring to a head the whole validity of 21 the realism argument as applied to them. The case law 22 doesn't support that. The case law will support only 23 the validity of a sanction.
24 Secondly, the case on which the county 25 relies is --
and it's useful to read. It says, "If a NEAL R. GROSS COURT REPORTERS AND TRAN5CettBERS 1323 RHODE ISLAND AVENUE, N.W.
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'-------_.----m_ _ _ _ _ _ _ _ _
(: .
, . g 9 _.
1: . party if1-willing to pay. the price ; of being published'
~
ii l 2- :for contempt or suf f ering.. an equivalent.-sanction such R 3' "as dismissal'of the complaint for t h es /alidity of the -
4 order he's disobeyed is ultimately upheld,. he can get 5 immediate - review of Ithat order."- Well,-dismissal of.
~6 'one's complaint in-a civil case is.very close to:being
.7 dismissed as a party from an NRC proceeding.
8 The long and short of it is the: county.and 9 ' state gave no justification for'their: actions defying.
10- the Board and . there is none. That is one' prong of 11 behavior which led up.to the Board's' decision to hold !
. i 12 extraordinary hearings in July.
13 The second prong was ;the appearance late'in :
'14 May of a document called the Suffolk County Emergency 15 Operations Plan. The Commission has no; doubt. read a. ;
i 16 lot about it. This is-it. It's about 750.pages long.
17- .I'll be the first to tell you it 's - not a Shoreham !
18 specific plan, but it' gives name, rank, serial number,'
4 19 telephone numbers, organization charts of county
.I 20 organizations. It also is accompanied by a document j 21 called the County Resource Manual which fills in the 22 interstices of this document. This document is used ;
)
23 by the county. So is the resource manual. The County' 24 Resource Manual includes, among other things, an EBS 25 appendix, EBS being an issue which the county has l
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W. i (202) 234-4433 WASHINGTON, D.C. 20005 (202) 232-6600 )
a .
g 'm
. 61 ' .
1.s ' hcitly. contes t'ed 'over 1 the years.
'2- The county.' claims that~ they thought' they 3 turned'it over in!1982, '8'3. They didn't. 'ILCO han,'
L 1'
l' 4- - according to .its records,. 161 pages of ' the ='some 760-l .
15 .
pages -in "this - document:. They're in'close to a: dozen 6~ fragments. Those f ragments = have widely dispersed 7 Bates stamp numbers. Bates stamp ~ numbers are things 8 .- that lawyers stamp on documents as they send them out.
l 9 If that' document had been one coherent document, the 10 ._
Bates. stamp. numbers should have been continuous. They 11 .weren't. It was almost as though the document were
~
- 12' sundered.
~
13 The document was not produced. since that 14 time. LILCO's records indicate that, i t . -wasn ? t 15 produced. The county has no records to-indicate that 16 it was. The county says it returned its records from 17 Washington to Suffolk County in 1985,'but they, to 18 this date, have not gone back to try to recreate them.
19 I believe the evidence is strong that it was not 20 produced.
21 Was LILCO damaged by that non-production?
?
22 You bet. The realism rule depends on the production 23 of information exactly like this. LILCO was 24 profoundly damaged by this. It took LILCO some years 25 to get enough information to refine that argument, to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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h4 s' ' '1' L t '
. l 1: '_ persuade ulti~mately " the - Commission ' to dopt ~i t . We
!2 coul'd have 'done -it'~ sooner ~ otherwise, I believe.
Even_
l
'3 i that - is . secondary. .The fact of the metter ic - Lhet 4 'there was. disregard for.the Commission's rules in the 5 failure to produce this document.
!; - 6- This was not the only document-which wasn't 7, produced until the literally last minute- . There was, 8 i n- addition to this, :the .Suffolk County Resource 9 Manual. There were numerous miscellaneous county.
10 emergency! plans. The state' produced . a guidence-11- document by the State Emergency Management- Of fice . at
.12 the very. last minute. There were state / local
.13 governmental plans .f or guidance for the ingestion
- 14. pathway.that were produced. None of these things came 15 -out of normal' discovery. None of'them came out until 16 the Gleason Board . had said, "We've decided these
-17 . issues. There's going to be a sanction of either 18 dismissal of the contentions, the realism contentions 19 for LILCO, or a default judgment entered in your 20 favor." It wasn't until after the sanction of 21 dismissal for the entire proceeding had been discussed 22 that these documents started coming out.
23 Now, at the hearings, information about the 24 emergency operations plan came out. Information about 25 the knowledge of state officials about radiological HEAL R. GROSS COURT REPORTER $ AND TRANSCR15ERS 1323 RHODE ISLAND AVENUE, N.W.
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y ,
.c , 53,
- l~ ' ingestion pathway . protection came ' ou t. -Information.
2 about the' way the state :had 1 made cits - decision 1 to . eut 3: ~the-RECS line came out.
4 The hearings were not' limited,.as'the. county 5 has - sugges ted , to the very narrow issues of one-6- production of this' plan to :the . discovery impasse ~ to :
7- t h e ' s p r i n g ~. Those were ' central issues, ~ but Judge.
8 Gleason'made clear-in. orders prior to the hearing that' l 9 they would cover the entire issue. of productioi or j 10- -non-production. of emergency plans and .'r e l a t e d-E 11 documents since 1982. There was ~ not, as . interveners 1
.i 12 have claimed from time to time, lack.- of ' notice 'Lv '
i 13 that, nor' was there any lack of ' notice as to th t 14 possibility of a dismissal sanction as a result of the j 15 hearing. LILCO broached that subject on June 23 in n )
16 : motion.
It was raised again in a cune 24th !
17- teleconference with -the Board ' af ter the discovery ;
i
~
18_ impasse had really reached fairly severe proportions. l
'19_ The Board at that time said -it would ;
- )
20 consider it. It was-not prepared to rule on it at 21 that point. 1 22 CHAIRMAN ZECH: Excuse me. Who participated 23 in the teleconference?
24 MR. IRWIN: I believe the transcript.will
')
25 indicate -- certainly I participated, a couple of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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47
-u .....
m +
i ii v w1s other members of>my-firm, representatives - of . Suf folk
.i 2 , County, including I-know Mr..-Brown and Ms. Letsche, -I j 3: believe ~ Mr. ?L'anpher; also, 'although the transcript is-
. 4 authoritative on'that. Mr. Zahnleut'er ~ f or the state' y 5 'ofJNew York, Mr. Reis f or- the - s taf f , Mr.-Cumming for 6 ' FEMA. There may- have been a couple of others,eplus 7 all.: the members of the Gleason Board.
m 8 -CHAIRMAN ZECH: Thank you, you may proceed, s
~i i
9 MR. IRWIN: The Board's decision: resulting '
10 from the July hearings. is one which I'm' certain ,
q 11 everyone has read and .I wc,n ' t go over it in = detail .
i 12' It'is detailed.- It is well reasoned. It establishes 13 that the; county and the state had, on selected issues,- -
- ~
14 pursued a course, in the long run,, which was ;
j 15 inconsistent with their obligations as litigant.s l 16 before the NRC. It documented the nondisclosure.of the 17 emergency operations plan and the harm from tha-t. ,
~It 18 documented the disclosure only in an untimely fashion l
4
.19 of other documents. Documented the refusal by the 20 county and state to be forthcoming with information. . '
21 We correctly found that the discovery impasse before 22 it was a threat to the integrity of its operations and l I
, 23 those of the Commission and showed a disrespect for !
I I 24 the operations of the Commission, per se.
25 It also was correct and proper in tracing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
WASHfMGTON. D.C. 20005 (202) 232-6600 (202) 234 6
1 through six years of history to show that there was a 1
l 2 pattern, a certain degree of consistency in the 1
3 county's and state's conduct.
4 How, let me discuss briefly a point which 5 Mr. Brown has made. He's tried to suggest two things.
6 First, that you have to separate those things within a 7 proceeding from those things wit.hout. As I've 8 indicated that can be done, particularly if those 9 things which took place outside the four corners of 10 the proceeding are imported into i t ..
11 Secondly, whether to be a pattern which is 12 not acceptable conduct doesn't require unlawful 13 conduct, per se. It merely requires conduct which is 14 inconsistent with the ultimate purposes and goals.and 15 procedures set forth by an agency or other body which 16 is connected.
17 Secondly, it doesn't have to dominate every 18 action. The county and state played good hard ball, 19 hard-nosed litigation, on a lot of issues. Some they 20 prevailed on, frankly though they didn't win on any 21 substantive issues. They won on some procedural 22 issues to delay the plant. But you don't have to 23 violate rules on every issue to violate -- such a way 24 on those issues you care about that enables you to 25 subvert a proceeding. That's what they did.
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66 1 In the case of deciding who is actually 2 going to implement an emergency plan, how it would be 3 done and keeping information from coming to light 4 which shows beyond a shadow of a doubt that it can be 5 done and that these organizations are well endowed to 6 do it. The county, which has had Brookhaven Lab in it 7 for 20 years and almost all of whose territory lies 8 within the ingestion pathway zones of three different 9 nuclear plants. New York state which operates six 10 nuclear plants and is perfectly capable of doing 11 emergency planning and which, in fact, took over for 12 Rockland County in 1982 and '83 when that county 13 defaulted temporarily. Information which clearly 14 indicates those entities can do the job, that's what 15 they withheld. It was selective, well done, and IL 16 was wrong.
17 Second, Mr. Brown suggests that no sanctions 18 are warranted. Even Judge Shon who dissented from 19 parts of the majority opinion agreed that the sanction 20 of dismal of the contentions in awarding a summary 21 disposition of the realism issues should have been 22 awarded. The question is how much more. I, frankly, 23 believe that the record fully supports the well-24 reasoned views of the Gleason majority.
25 The Board -- Judge Shon raised the question l'
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w ... '
[ 'M
@c
}_'
C .67-i- , > o 1 W. 'of whether government participants should be subjected r
4 2 'to' .dilferent standards. than those of other 3 participants. I agreecwich Mr. Brown that they should
~
4_ not. They should be held to the same standards. inii" 5 other participants take the - proceedings as they find 6 them, governmental participants should, too. -Like
'7 other participants,-'they should obey the rules.
8 What has happened . here, though, is there's:
9 one caveat one has to put on governmental.
10 participation, and that is when governments cease -to.
11' act'as participants in a NRC proceeding.and begin to-12 act as though they themselves are running the other.
13 agency 's - show, then ' they have a . special obligation.
14 That is what has happened here. The governments 15 stepped outside the rule of litigants and they simply 16 asserted their sovereign prerogative to have their.
17 -final choice. .
18 They may not cooperate. It is within their 19 rights not to plan in advance for emergency planning.
~
20 That may not be good policy, it may not be sensible 21 for the people of the state of New York or of Suffolk 22 County, but it's their legal prerogative. What they 23 can't do is prevent LILCO from compensating for their 24 default or prevent the NRC from finding the facts i 25 necessary to reach a decision. I t .' s at that point NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE l$ LAND AVENUE, N.W.
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g ... .
<*r ... '68
. d
- 1 when - the government s tepped outside . their role Vas,.
~2' .
participants in an NRC 4 proceeding. that they crossed -
p n .
3- the line.
-4 So, in short, the participation of the-u 5 governments o f - New York state,- Suffolk'- County . and?
'6 Southampton has ,- I think ', crossed the line ~ on this 7- selectivefgroup of. issues consistently ~and' repeatedly L
8 for six years. -And for that reason ,. the Gleason
-9 Board's~ decision should'be upheld.
10 The town ofLSouthampton'wants'a quick-note.
11 The . town of Southampton' has not been-an active
' 12 ' participant, but'it has been a.co-venturer and it has 13 been en board ever since l'983. For the town not to be 14 . thrown out would not only be pernicious and would be-15' inconsistent with basic notions of joint venturesLand 16 taking the burdens of a bargain as well as the 17~ benefits, it would have a particularly pernicious 18 consequence. If the town were still in the proceeding 19 and the county and state out, you would have the.same
~
20 issues having to be litigated by surrogates with the 21 information which LILCO and the Commission having to 22 o btain being one step removed from the basic source.
23 In other words, it would have to go through the town, 24 through the county and the state. And if it's been 25 hard to get the information from the county and state NEAL R. GROSS COURT REPORTERS AND TRANSCA18ER1 1323 RN00E 15 LAND AVENUE, N.W.
WASH 4NGTON, D.C. 20005 (202) 232-6600 (202) 234-4433
j .I ,
f .a . .,
69 1 thus far,-' add another leg to.the. dog leg and you can 4 . .2 imagine it.
~
3 One_ quick note'on the ' realism issues which
.4 'are, I believe, technically = bef ore the. ' Commission, 5- . al though -~ i t 's. hard to say. 'Al1~ the Board members
~
6- agree; the local' had carried ' its burden on . those 1
7 issues.
8' I' believe my watch says I have 15. seconds ?
w 9 -left, p
10 COMMISSIONER ZECH: Yes, you have just.one
' ll- minute left to go if: you want to summarize quickly 12 or--
13' MR IRWIN: 'To summarize, gen tlemen , t he.,
14 -issue 'bef ore this ' Commission ultimately'is.who is in-15' charge here. Is the Commission going to be 'able to 16 enforce its policies when the' rubber hits the road of 17 a very hard fought proceeding against powerful 18- adversaries that don't play by the same rules as the 19 Commission wrote f or - other litigants, but rather
~
20 resort to their sovereign prerogatives. If the
- 21. answer is yes, the Commission has gone, I think, most 22 of the way toward resolving its probably most 23 difficult. policy problem it's faced in the '80s, that 24 of emergency planning.
25 If the answer is no, I think the Commission NEAL R. GROSS COURT RfpORTERS AND TRANSCRIBERS 1323 RHODE 1$ LAND AVENUE, N.W.
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, 7
.. .m,
- > m + , ,
70 u -
li h a s l o's t control of.its..own process and:thV future'not i .-
% 2 .only :at7 Shoreham,: bu t : a t. every other plant' that'may 3 face similar circumstances is very'much in doubt. 'The i
4 Board - did - the right thing, you should' affirm.
5^ COMMISSIONER 'ZECH: 'And .I thank. you very.
6 much.
'7 'How would you characterize, Mr. Irwin, what' 8' kind of. conduct would warrant dismissal f rom : a-9 proceeding?
10- MR.:IRWIN: First of all, it's inherently!a
-11 matter of inference, Chairma n- - Ze ch . You're rever 12- going to find a pi~ece of paper . that has " bad. faith" 13 written: across the top.of it. You've got to look.at
'14 how conduct squares with~the norms and requirements of 15 an agency.
L 16 Now, a. good working definition is.that just
- 17. as the litigation process is designed to. expose 18 information, refine it and bring it to judgment; 19 conduct' which frustra'tes that, particularly when.
20 there's evidence.of consistency and openness about it, 21: tends to indicate behavior that is inconsistent with
-22 the responsibilities of a litigant. For governments, 23 for any other participant, to say we simply will not 24 comply with these rules, I don't care whether they're
~ I, . 25 overt about it or covert about it; when they A -
your NEAL R. GROSS CovaT RepoaTER$ AND TRANSCRIBER $
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H
- f. ; a u I.- 71
- 1. ' r ul e s ', ' th e y. r e playing - by something ' you can'.t live- .
2 .with as an administrator of an agency.
~
3 When that's done . consistently. and in the'-
4~. face of sanctions that are repeated,-as was the case 5 -here, I think'you have sufficient bad fait.h conduct to-6 discipline parties by its dismissal.
7 COMMISSIONER ZECH: I thank you.
8 Questions from my colleagues?- Mr. Roberts?
9' Mr.'Carr?
10 Mr.:Regers?.
11 COMMISSIONER ROGERS: Well, just if you
- 12. could say a word. Part of your complaint is that by.
13 refusing to' participant in emergency planning, the 14.- : governments have created roadblocks in the way ' ..of a
. .15 license. But for the NRC-to license a plant, it must.
- 16. find emergency planning to be adequate ~w hether there 17 is a contested proceeding .o r ' n o t . And if, as , yoii 18 claim, the interveners continue to obstruct emergency 19 planning, how would their being dismissed in
.- 2 0 -terminating the proceeding cure that problem?
21 MR. IRWIN: The problem has been cured on 22 the record already, Commissioner. By 1985 the 23 licencing board had found that LILCO had put together 24 a plan using its own resources and those otherwise 25 available to it that would really supplant those of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVENUE, N.W.
WASHINGTON, D.C. 20005 (202) 232-6600 (202) 234-4433
_ _ _ _ - - _ _ _ _ _ _ _ = _ _ _ _ .__-___._-___._=:__-____-_
- 3 2. q-
-1 ,the state-and-county. ,
4 2 Different plants, .the . actual mix o f- , ,
3- resources actually contro11ed by. the utility and its).
4 contractors 'o r hypothetically: attributed! to, 5- governments which have ' when emergencies occur au
'61 obligation to respond to ' particular citizens will' 7- vary. But-in LILCO's case,- the answer is pretty' 8 simple. We have everything in place. All we- need :is f
9 the authority or the response of governments'_ in the 10~ ' actual event of an emergency to implement that plan 11 within the limits imposed by an absence of delivered 12 pre-coordination between them and. us . That,. In-13 itself,.has been in LILCO's case reviewed.in probably 14 the most exhaustive exercise every held, a. three ' day.
15 exercise this June.
16 So in short, the Commission has to look at 17 the resources provided by the utility and its 18 contractors, it'has to see in an exercise'whether they 19 work. And, as you may be aware, FEMA reviewed the
~
20 exercise and found that there were no deficiencies in 21 it. And if that is the case, dependine. on whether our 22 proceeding is contested or uncontested, you can' reach 23 your conclusions. But the mere fact of opposition L 24 doesn't prevent you from reaching your conclusions.
L 25 You know the resources can be found and you know that l
l NEAL R. GROSS COURT REPORTERS ANO TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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73 1 governments have an obligation to respond in an 2 emergency. And the test is whe t-her the plan is agile 3 enough to cope with the pre-emergency obstreperousness 4 of the governments.
5 COMMISSIONER ZECH: Anything else, Mr.
6 Rogers? Then I thank you very much and appreciate 7 your presentation.
8 We'll call on Mr. Reis. I believe he has 9 ten minutes of the time. Mr. Reis, you may state your 10 name and who you represent for the record, please.
11 MR. REIS: Mr. Cnairman, members of th" 12 Commission, my name is Edwin J. Reis. I represent the 13 NRC staff here today. Sitting next to me is Mitzi 14 Young, who is also an ettorney with the staff.
15 COMMISSIONER ZECH: I thank you very much.
16 You may proceed.
17 MR. REIS: Mr. Chairman, members of the 18 Commission, much was made in Suffolk County's argument 19 about what is the meaning of bad faith and there was 20 an admission that if there was bad faith in this 21 proceeding, the Comioission would be within its rights 22 to dismiss the county and the other interveners to 23 this proceeding. I would like to say that bad faith 24 is not evil motivation under the cases and the laws of .
25 the United States. It is just a refusal to obey NEAL R. GROSS court REPORTERS AND TRANSCRIBERS 1323 RHoDE ISLAND AVENUE, N.W.
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- 74
^'
. rj .,l S.. :1- :1'awf u1L .or ders. Jof1:a court or,'in this ' case, of. the 3 '
a 2 Comraission ! through a ' board. ,
~
3: The cases we' c cite in . our brief,. including pa r t i c ul a'rl y - Jon e s ds.l Niagara Frontidr_TrMnsit 4/
5: Comria ny , -makes that very,y 'very clear. ' A- ref usali to .
4 '
6 +
obey lawful ordersfis,'of itself, bad. faith. The Ju'ne- 'H
, , '/ : - notice and the .- telephone ' conversation of ' June 9th a
8 wherein the. county and the state incicated that theyL 9 'would not submit to.disecvery, they would not.. produce 10 any witnesses.for deposition'but:the.two they. chose--
Ill-'
~
an'd'F want to ask-what kinds of legal' proceeding can 12 you-have when one ' side chooses only the '. people they 13 Jwi11' produce -- shows that;there was this refusal to 14 obey an order of the Licensing Board.
15 They talk . about" being legally constrained-
'16 and that, therefore, they could-not obey the order of 17 -the board. Let me say that the ' question of:- legal 18 constraint and. what it means, and :.where there.is 19 . legally constrained is fully set out in-the Supreme 20 Court case of Society International, etcetera citediat 21 page 45 cf our brief. That case plainly shows that 22 'there is was not legal constraint here. There was no 23 -law here of a competent authority that could prohibit 24' them from giving-the information they withheld. ,
I 25 There was the resolution of the county, f i
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75 O'
- 1. there was the orders of the government ,- but' as this 20 (s
"j <
L < 2L Commis sion well knows, jurisdiction to . find ecut 4
3 L. whether the.public health and safety is protected in 4 connection with the l'icensing.of nuclear.piants. rests 4
5' with this commission and not with those authorities.
l '
o- And .therefore, considering that this Commission. ' has
-7 this authority and is the ' supreme ~ 1aw of - the . land ei s -
'8 being-law of the. United States;under the Constitution.
9 ~ there:was.no legal constraint on them from giving the 10- .information they refused to give.
11 Further, even the laws'they cite'didn't say
'12 don't give the information. They. only said don t t-13 cooperate in~emergen'cy planning. They didn't say'you J
.14 - should not give the information you ' re required to-15 give-in administrative proceedings.
16 The county and the state here used t.he 17 rubric and repeat again and .again, "Oh, you can't 18 force us to plan for an emergency." .But as Mr. Irwin 19 said, and as I think the record plainly'shows, what is 20' required - here is not planning. It's that they be 21 forthcoming, as Judge Margulies said in his original 22 orders, and be forthcoming in a way the Commission 23- indicated in its orders starting the Shoreham 24 proceeding from the beginning and say what their 3
25 resources are, what their general emergency plans NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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76 1 would be, which they didn't reveal un ti l May of last 2 year, what their methods of operation would be, what 3 their capacity to take emergency actions are, which 4 they refused to say, and what they could -- and I 5 emphasize could -- do in an emergency as well as what 6 they would do. They instead say, "Oh, this is all J
7 hypothetical. This is all speculation. This is all 8 not relevant. We don't know what's going to actually 9 happen until there is an emergency." We'~ Lhis is an 10 attempt to prevent the Commission from learning the 11 facts it should learn.
13 And the county was instructed in the case of 13 LILCO vs. Suffolk County,as well in the second circuit 14 case involving this proceeding, by the courts that 15 they can't pass laws to prevent the Commission from 16 gathering facts necessary to see if the public health 17 and safety is protected.
18 COMMISSIONER ZECH: Did you say "can't?"
19 MR. REIS: Cannot.
20 COMMISSIONER ZECH: All right.
21 MR. REIS: They cannot pass such laws, 22 COMMISSIONER ZECH: All right. Thank you.
23 MR. REIS: Here they can't prevent employees I 24 from testifying and they can't go around failing to 25 reveal plans and other documents in their possession.
\
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' ' 77 1 Certainly the basic integrity of the 2 adjudicatory process would be attacked by allowing 3 them to do that.
4 It's not upon individual parties to decide 5 which orders to comply - with, what discovery to meet 6 and what parts of the proceeding to take part in.
7 Instead, they have to cooperate. The interveners here 8 took it upon themselves'to try and get a veto over the licensing of Shoreham; not on the merits of G" <
~-ty 10 of Shoreham, but by abusing the process through 11 defaults and delay. They have done so in the past, 12 and I listened carefully this afternoon and didn't 13 hear that they would cut this conduct out in the 14 future.
15 As in the courts, litigants must obey 16 orders. It is not on them to choose when to obey or 17 not to obey. How unfair it would be to allow one to 18 participate in part of a proceeding and refuse to 19 perform their obligations in another part. Judge 20 Gleason correctly stated that where one unjustly 21 refuses to take part and obey orders in one part of 22 the proceeding and thus hamper the Commission from 23 elucidating the facts it needs to make a decision, may 24 not take part in another. .
25 The appeal order said that a litigant may NEAL R. GROSS court REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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n'o t: step in 1 and' .out of a proceeding at will.
~
How 1-'
' unfair it would be.if one was to choose'where it would; J
'2 3 . reveal f acte 'and. where .it 'wouldn't. When : Suf f olk t .' '4' - C o un tiy and the state of New York and ' the town of 5 S o u t h a m p t o n.' .g a v e . notice ~that they . would ;no t 6 ' participate in ' the realism proceeding. and not to 2 -7 submit. to discovery because they didn' t; like ~ the 8 orders-of the Board, -they took - themselves out 'of the .
9 entire Shoreham case. They can't choose to r oi a l.n 10 only where it is to their advantage. The integrity of 11 the ' adjudicatory process ' depends , as I have said, on
.I 12 ' litigants not deciding which orders they will obey and
~
13 where they wish to participant. Fairness.'not only r
l .14 ~ permitted, but . requires dismissal of the entire.
^
15 Shoreham proceeding.
16- Thank you.
Thank you
~
17 COMMISSIONER ZECH: All right.
18 very much.
19 Could you characterize for me what kind of 20 conduct that you think would warrant-dismissal from a -
21 proceeding?
22 MR. REIS: I can't characterize the minimum, 23 but I can't very plainly say that it is conduct that 24 we have present here, including the June 9th order 25 where they said they would not make anybody available NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 132*, RHODE ISLAND AVENUE, N.W.
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- 1' - -to appear' at ! depositions . but- two ' people. Certainly-2- ' that is a refusal'to. obey plain Board' orders that were
~3 given. L And they were Board orders and that was given.
24 Even bef ore then, -in - the course of ~~ discovery ' bef ore 5- they revealed ' the- Suffolk County emergency: plan' and 6 they- said they would not have .-discovery after. they
~7n revealed tha t, ~ plan , -they didn't~ fully answer the 8 i n 't e r rog a t'o ri e s as the 'B o a r d f o u n d . They didn'tl 9 produce documents for diuc'o very ~ , the ida y. 2 51. h orce .
10 They didn'.t produce-many of the witnesses asked for in 11 ' depositions and when they did, they interrupted the.
12 ques tions ,' ' they .gave evasive answers and .they .-walked -
13 out.of the depositions before they were over.
'Certainly these things-fall within the scope
'15 of where there can'be dismissal. And as I said, the 16 cases very plainly indicate that the refusal to '. obey 17- is bad faith and bad faith necessitates dismissal.
18 COMMISSIONER ZECH: Let me ask you also do 19 you believe a different standard of conduct should 20 apply to governments as opposed to private parties?
21 MR. REIS: Under the Atomic Energy Act, of 22 course, governments have special status in NRC 23 proceedings. They need not take part, take a 24 particular side, they can advise the Commission. But 25 once they choose to litigate and take part as a party, NEAL R. GROSS COURT Rep 0RTER$ AND TRANSCRIBER $
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g0 1: ;I: think they are-held to the same standards as '.other 2 parties. And' jus t in the. same : way to preserve ' th'e 3' jurisdiction of ' this Commission and ~ of :the United
. 4 States, they have to obey the orders and ' lawfully take
- 5 'part in those proceedings.
6 COMMISSIONER ZECH: I want-to thank.you'.
7 ' Questions f rom. my f ellow ' Commissioners.
8 Commissioner Roberts?
9 COMMISSIONER ROBERTS: No.
10' COMMISSIONER ZECN: Commissioner Carr?
11 COMMISSIONER CARR: Yes. Apparently t.he
, 12 staff changed their position on . sanctions . Why did 13 you.do that? -
14 MR. REIS: Why did we do that? We did that 15 in looking at the scope of it. We originally just 16 looked at, well, had they produced parts of the 17- emergency plan early'on. Later, after we read Judge 18 Gleason's opinion and were educated, and later after
.19 we saw the pleadings of the county and the state-that 20 they weren't changing their position and would'not go 21 cooperate, we felt that our position originally had 22 been wrong and that they should be dismissed from the 23 proceeding because there was no way in which the
-24 integrity of the adjudicatory process could be 25 preserved and the Commission could preserve its HEAL R. GROSS COURT REPORTERS AND TRANSCRIBER $
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- 1. jurisdiction and go forward and determine facts ~j 2 without them being dismissed.
3 COMMISSIONER ZECH: Commissioner Rogers?
4 COMMISSIONER ROGERS: Yes. Just on a l 5 follow-on since you did take that pocition ultimately, 6 what weight 9ould you assign to the public's interest 7 in having issues related to public safety decided in a 8 public forum?
9 MR. REIS: I assign great weight to that and 10 were it to be done, I think that should be done. I 11 think here was an opportunity for the state and the 12 county to come forward and show how they would improve 13 emergency planning after it was decided that it could 14 be done, after it was decided that the plant could be 15 done.
16 Here we cannot reach that. We can try, but 17 we could not reach that end. We did have the 18 cooperation of the state and county, not in litigating 19 whether the plant was safe, not in litigating whether 20 emergency planning was possible, but just in delays 21 and defaults. So we could not go ahead and obtain a 22 very sought for result as to have them take part in 23 public proceedings and have public proceedings decide 24 this.
25 Let me say this, if the Commission should HEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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ca , .;,- ,
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1l sdismiss this proceeding,-.a heavy. weight would!.be put-p l '2 ~ o n' the , Director of ' Nuclear. Reactor Regulation to 3- decide -the' issues left over 'in this proceeding. .It-4 'would be on'h'im.to decide, though, at this point.
l
'5 COMMISSIONER ZECH: Any other questions?
i 6 If not, then I thank you very much, Mr.'Reis.
l.
7 MR. REIS: Thank you.
8 COMMISSIONER' ZECH: .I '.1 1 ask' the 9 representatives ~ of New York, Suffolk County and . the
'10 town' of . Southampton to come f orward ' f or rebuttal.
11' It's my. understanding,, Mr. Secretary, 12 there's 12 minutes.
13 SECRETARY CHILK: Twelve minutes.
14 COMMISSIONER ZECH: So you-may proceed 15- whenever you're ready .Mr. Brown"or Mr. Zahnleuter, 16 whoever wishes ~ to go ahead a n d p r o c'e e d when . you ' re 17 ready, please.
18 MR. BROWN: Could we confer just for one --
19 COMMISSIONER ZECH: Certainly.
-20 MR. BROWN: Mr. Chairman.
21 COMMISSIONER ZECH: Proceed when you're 22 ready.
- 23. MR .. BROWN: Yes. I'd like to, if we could 24 divide this, that I would take, say, 9 minutes.
25 COMMISSIONER ZECH: All right.
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I 83 1 MR. BROWN: And then Mr. Zahnleuter would 2 proceed.
COMMISSIONER ZECH: Nine minutes, Mr.
3 Secretary, and three minutes. Fine. Let's proceed.
4 5 MR. BROWN: Thank you, Mr. Chairman.
6 What we have witnessed is a continuation of 7 exaggerated accusations and claims, but I want to point out a couple of things. Mr. Irwin, when he made 8
9 his presentation, said the central issue here is 10 whether the governments are seeking to overtske control of this Commission. Actually, he used sort of 11 12 a flowery phrase in his brief'and it talked about the 13 "true motive of the governments is to arrest control 14 of this proceeding from the Commission and take it 15 into the government's own hands." And that motif of 16 exaggeration pervades everything.
17 The most significant thing to keep your eye 18 on is the notice that you put t, 1. . This Commission 19 put out a notice saying today that the question is 20 whether the sanction issue is warranted. It could 21 only be warranted if there is bad faith, and bad faith I will get to in a moment, isn't a casual finding 22 23 plucked as a flower, as Mr. Reis would do it.
24 The issue is whether this Commission is 25 going to throw out the governments which have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
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. 84 -1 1 participated for seven years in this proceeding and 2 have conducted themselves in what is an exemplary way 3 in every form of the word. And on top of that, the 4 governments have in no way done anything which anybody 5 could characterize as bad faith.
6 Mr. Irwin spoke for 30 minutes and never 7 used " bad faith." He was asked a question, finally, 8 after 30 minutes of never mentioning anything about 9- bad faith, never gave any facts. He referred t.o a 10 question, I believe, from Commissioner Rogers and said 11 that the standard is bad faith.
12 Mr. Reis said that what is necessary to do 13 is to glean, "to infer" was his word, bad faith from 14 disobeying an order. But if you disobey an order for 15 the purpose of taking an appeal, as the 7th Circuit 16 case I quoted from and that case cites the United 17 States Supreme Court and is well established in the 18 law and nobody gets throwr out for doing it, how do 19 three governments that have participated for seven 20 years most constructively that have done things even 21 over opposition of the staff of LILCO and succeeded 22 and tragically, even Mr. Irwin referred to a sad note 23 in the Commission's history in this case. In 1984 the 24 Commission exuded such hostility against the 25 governments that we had to go to court and get an l NEAL R. GROSS CO'JRT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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n- g5 l' injunction, a temporary restraining order, against the' ~
W c2'
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' Commission to ' stopi .it ~ f rom denying us constitutional 3' ' rights.
W e l'1 ,
~
4 this is not- a- c'a s e of some 5 obstreperous government trying to take over. We don't 6' ask to be given'special treatment. You can hold us to 7 the highest standard .you want. The . conduct of the 8' . government are the 'only three pillars on which the 9 Board rested its determination that.it could throw.us v4-10 that, in which it made its-link of-logic to.get-the 11 bad faith,.was one, those unconnected lawful actions
~
12 . which=can't conceivably be deemed to have been done-in 13 bad faith. The second is the county emergency 14 . operations plan in which'the' Board itself did not' find 15 an intent to withhold'it. And if you don't intend to 16 do something, you . can ' t , obviously, try to do it in 17 bad faith. And the third is the question of the 18 impasse over discovery, which was in goed faith in 19 which the governments disclosed everything 20 forthrightly and took an appeal. They didn't hide 21 anything.
22 And what led up to that impasse, the notion 23 that the governments were concealing and not 24 responding is one gross mischaracterization. People 25 were asked questions in depositions, just like on-the NEAL R. GROSS COURT REPORTER $ AND TRANSCRl8ERS 1323 RNOOE 15 LAND AVENUE, N.W.
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u . ~]
I 86' 9-1 ' witness. s t'and,'. what' they ' would do in an emergency; j.
2 :And they said, "I don't know." 'The reason'they didn.t p '
u 3 .know , . they don' t have a plan' ' f or1 Shoreham. "What 4 . would you do?" "I can't speculate about what I would 5 -do."
6- Now the reason it's proper to say they don't 7- speculate is this Commission has-to'make, findings that 8 are based on r e a s on a ble ' a s s u ran c e '. Could you 9 conceivably make findings that-have the subatance of
- 10 reasonable. assurance if they're predicated upon.
- 11 speculation? No. And' that's why one of the time 12- -honored objections.that's made.in legal proceedings is
' 13 "I~ 'can't speculate." The witness 'can't speculate..
141 . Everybody _ knows that. To be held accountable and'
'15 thrown out of every proceeding because witnesses. told 16 the truth, namely "I can't speculate." No one's 17 hiding - that. .They said I can't. speculate, because 18 they couldn't.
19 Now, the answer comes back from Mr. Irwin 20- and Mr. Reis, they ref used -- they refused to give 21 answers. -Well, they refused to give answers no more-22 than an unfortunately blind person refuses to read.
23 They only would have refused if they, in fact, had the 24 information of what they would do and they withheld 25 it. That would be refusal. If you can find that NEAL R. GROSS COURT REPORTER $ AND TRANSCRIBER $
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[r " . .87 t , ,
i 1- people' lied, then-' you'. are in; a different categoryLof
'2 situati'on and you -have the :- righ t- to be ' pret ty 3 irritated:that someone had lied. 'Now,'no one-had. lied.
4 on this record. No one alleged-anybody. lied. Nobody
.5 refused to do anything, Everybody told the ' truth.
6 And.'it's'not appropriate.for this case.to turn at'this -
7 -moment on the issue whether.the. governments should be
, 8 _ thrown out to give a license. Everybody knows LILCO's l- 9- frustrated and everybody knows -from the public record
-10 that there are government officials who want Shorenam 11 licensed. All one has to do is--read any newspaper and 12 there'are people out there who think that if Shoreham doesn'.t'get a license, it's the end of nuclear power.
13 14' Well, ' tha t 's nonsense. There are five operating in 15 New York state right now. There's no anti-nuclear 16 . juggernaut at worst.
17 Suf f olk County has got three roads that go 18 east and west. And you can ' t ' evacuate . Shoreham 19 happened to have been built before the NRC passed 20 emergency planning regulations. And no one looked at 21 whether you could evacuate. After the NRC passed the 22 regulations they looked and found out the couldn't, so.
23 Suffolk County told the truth. They said we have two 24 choices. We'll put an emergency plan into being and 25 lie. to our public, tell them they can be protected NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
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88 1 lwhen,~in fact, they.can't or we'11'tell the-truth and-2 . noti ' mislead . them so they don' t get s tuck inl~a gridlock?
~
3 exposed' to the radiation they were ' sought to - flea.
4 And they told the NRC they~did'this.
5 We have ' never -- it isa parity 'o f : a j ok e .
6 almost to'think that we'have been here tell'ing you not 7 to'do your job. We-have fought to have the'NRC. apply.
o ..
- 8 the regulations. We f ough t- .to win the cases before 9 the appeal board and the licencing board and Lefor e
- . 10 you. We went to court to protect you . and your 11 integrity. That's what the record is. The notion.
12 that somehow' we ' re 'in here to ' subvert things for 13 political ends is intrinsically prepos te-rous ' and it's 14- unseemly. And the notion that people can sit here 15 with a straight face and suggest to you that you have
~
16 to throw us o u t~, you have to kill the messenger.in 17 order to get rid of the message that we're giving.so 18 that you can licence Shoreham to save nuclear power 19 for prosperity is plain and simple nonsense.
20 Nuclear power doesn't turn on Shoreham. It 21 was a mistake. It happened to have been built at a 22 place where no one checked whether you could evacuate.
23 And if six years ago LILCO would have agreed with the 24 county when the county offered LILCO to abandon the ,
25 plant and work with LILCO to solve the economic NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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t__.__________ . _ _ _ _ _ _ _ .
[4 ,R ' s 4
39 1
You have ~i 1' ' problems, this never^would'have: happened.
a-2 company ' tha t-- took , a risk and its Ejudgment was . very , .
'3 very bad 'because it created problems left and ' right;'
.4 ' And- now it wants you' to bail itc out ,of the problems .it
-5'- . created. It wants to say'if you don't do this,'it'll 6 :effect.some agenda that you have'or an agenda that-the-7: federal' government has.
8 The fact is, the- issue is was there. bad 9 faith here? Can you throw out the governments? No You can't throw out the governments. We 10' bad' faith.
11 followedl lawful procedure. I'm sorry.
'12 COMMISSIONER ZEC't: Please, go ahead.
f! 13- MR. BROWN: We followed lawful. procedure on 14 the impasse. We did absolutely nothing ' that . co uld -
- speak.of contemptible behavior on anything else. And 15 16 the only issue -- the. only issue. relates to the legal l 17 - authority contentions. And in some circumstances, you 18 could make the case that the contentions ought to be 19- dismissed. And that's the sanction because we 20 disobeyed an order. But we didn't disobey an order. -
21 I explained to you we followed lawful procedure and
'22 the appropriate thing here isn't even to dismiss the 23 contentions. That would be a miscarriage of justice
-24 when you have governments working with you, seeking to
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. . 90 It's not appropriate to kill the messenger l 1 interest.
2 in order to get rid of the message.
COMMISSIONER ZECH: I thank you very much.
3 4 Mr. Zahnleuter, you may proceed.
5 MR. ZAHNLEUTER: Thank you.
6 It's necessary for me to address three 7 points very quickly that were made by counsel for 8 LILCO and the NRC staff. The first point is that 9 counsel for LILCO used the word frustrate in the sense 10 that the state has frustrated LILCO in LILCO's 11 attempts in 1983 and 1984 to compose a radiological 12 emergency plan by not volunteering equipment to be 13 relied on by LILCO.
14 As I said before, the state has acted in its 15 lawful capacity. These actions were lawful. But also 16 LILCO's burden in these years of litigation has been to show that its utility plan is adequate. This 17 18 burden was established by a decision rendered in 1983, it was June 10, 1983, by the licencing board. The 19 citation is 21 NRC 644. But that Licensing Board 20 21 established a burden on LILCO and from the beginnirn.,
22 the premise was that the utility plan relying solely 23 on the utility's resources would have to be shown to 24 be adequate. LILCO may not now be allowed to reverse 25 that precedent and claim that it was entitled, in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE 15 LAND AVENUE, N.W.
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'6'
.j
, 91 L1 ;effect,- to seize state . or, even county -resources and 2 . incorporate them.into-the plan. Such'an att'empt would
", c'
'~
3 violate the long standing ' law that this case has 4 proceeded under.
5 My second point ' relates to statements- tha t 6 were made regarding responses to interrogatories, m
7 which.are devices used in. discovery. .The' bottom line 8 :is that the state and the county and the. town.as well 9 . responded to all interrogatories. There were none 10- -that-were not responded - to. In addition, the state,7
- 11. the county and ' the town also complied with all Bodrd 12 . orders and' produced documents .in accordance with the 13 time schedules established by the Board orders.
.14 There was a reference to some docum'ents that' 15 LILCO' reques ted, such as ' authentication of certain 16 documents. But the state's position is that those 17 documents were requested in an untimely manner. It's-18 a very technical argument and I would refer the l 19 Commission to the Attachment 16 in the governments' 20 October 27, 1988 brief,-specifically Attachment 2 to 21 Attachment 16 discusses these technical matters.
1 II 22 The third point that I'd like to conclude 23 with is that counsel made a statement about how during 24 the depositions of state and county officials there 25 were objections made that obstructed the depositions NEAL R. GROSS COURT REPORTER $ AND TRAN3CRitERS 1323 RMODE ISLAND AVENUE, N.W.
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- 92 1 and that counsel instructed these witnesses not to 1 2 answer questions. I know from the state's prospective 3 that there was only one question directed to state 4 witnesses which was not answered by the witness upon 5 instruction from counsel. That dealt with the matter 6 involving communications with an attorney.
7 COMMISSIONER ZECH: One minute. I've messed 8 up my time, so you go ahead.
9 MR. 3 A d!' L E's ~ E R . That vb j e c i. ; on : 11 d 10 discussions with an attorney, and that is protected 11 information. Further, the objections were not rade on 12 the basis of relevance, as counsel asserted. The 13 objections were made on the basis of clarifications 14 and vagueness. Those are the kinds of objections that 15 the Commission's rules require counsel to make during 16 objections so that opposing counsel can refrain the 17 question. And that particular regulation is 2.740A 18 paragraph D.
19 So since my time 1s up, I will conclude.
20 COMMISSIONER ZECH: All right. Thank you 21 very much.
22 Questions of my fellow Commissioners? Mr.
23 Roberts?
24 COMMISSIONER ROGERS: No.
25 COMMISSIONER ZECH: Mr. Carr?
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93 For the purposes-of
. COMMISSIONER,CARR: Yes.
l....
1" f
4
'2 ' probing the position of . the governments, isn't Jit
'3 reasonable to inquire' into the . resources that- the 4- county and' the state have or probe the voracity of
~5 official denials that any response would occur?
6 MR. BROWN: If you're saying did.the state 7 and the county . withhold from local information on 8 resources,- the state and the . county gave LILCO t T i,c0 9 cnormuus camounts of infonrat';,n or resources.
10 knows.how many police departments there are,-how many 11 -this and t. hat kind of trucks and how many personnel 12 and so on. :And they've never had a problem with that.
~
13 The" problem becomes one of interfaco with LILCO. How
. 'a 14 are we-going to interface with'LILCO? 'And'there isn't 15 going-to be an interface with LILCO, and' tha t 's what
.16 led to the impasse.
17 COMMISSIONER CARR: You think that would 18 require the government to disobey their own laws --
19 COMMISSIONER CARR: -- if they interfaced 20 with LILCO?
21 MR. BROWN: Categorically.
COMMISSIONER CARR: On the interrogatories,
!- 22 23 I believe Mr. Irwin said that you usually asked for an 24 extension the day before the due date and then on the extended date you objected. Is that reasonably 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBER 5 1323 RHOOE ISLAND AVENUE, N.W.
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- 94-1 accurate?
2 MR. BROW 1J : Well, I'm going to have Mr.
1 3 Lanpher tell you. I can guarantee you that there was ;
l 1
4 no connivance involved in it, Commissioner, but --
5 COMMISSIOllER CARR: Just coincidence?
6 MR. BROWII: I don't even know what the fects 7 are. Mr. Lanpher does.
8 MR. LAIIPHER : If there was an extension of 9 L i rm , *n y reco11tcLion is that appro u a r t 'y one week 10 after the extension, I believe it was on April 20, we 11 filed objections to certain of the iitarrogatories 12 which was the schedule established by the Board for 13 objections. And on April 22nd, I believe the d a t.e 14 was, we filed answers to other interrogatories. There 15 subsequently was a motion to compel, commissioner 16 Carr, that was granted by the Board and then on June 17 3, 1988 further answers pursuant to the Board's order 18 were filed by both the state and the county. And 19 there was never any objection to those answers on the 20 record, no motions to compel. I hear now people 21 complaining that those subsequent answers weren't 22 satisfactory. Well, it's certainly untimely to raise 23 such objections at this time, Commissioner Carr. If 24 they had an objection, they should have moved to 25 compel.
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- s ,
- 95; l'- . COMMISSIONER ZECH
- Mr.: Rogers?
2 [COMMIS SIONER -- ROGER S : Yes. Therei-seems - to; i 13 .be a great'.' deal 1that hangs on1the. meaning ofLthis' word:
l 4' " interface." I wonder if yourcould just' help me out:a i-
! ,. 5 little . bit to unders tand ' wha t the limits are of what you're 'talkingjabout 'when ~you talk about- interfacing' 6
7' _which would be prohibited 'under government: laws'.
S'- What are'we taking about?
9 MR.' BROWN: What it actually meana is --
10 COMMISSIONER ROGERS: What'it would not.be?-
11' .MR. BROWN: 'It actua11y means' working with 12 LILCO during-an emergency on its plan. The affidavit 13 of Governor Cuomo and the affidavit of. County; 14 Executive' Halpen-'go into, in great detail, the reason 15 ,. why Suffolk County and the state of New York would.not
~
16 interface or work with LILCO or follow .LILCO's plan.
17 - They don' t 'have confidence in LILCO. There is page 18 upon page of reasons why. And the bottom line of all.
19 .this is a simple conclusion. After years of telling
~
20 the public and working to demonstrate that the 21 shortcomings of LILCO's plan would show that the plan 22 was not in the public interest, the county and the 23 state, the Governor, the other officials after 24 believing from the bottoms of their heart that the <
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96 y,.
c an. emergency: turn around and
. l1 -incompetent,- couldn ' t : in 2: etell(theipublic.nowLwe ire going'to work with1-LILCO on
- 3. . thi s. plan. ; Th e y; : w o ul'dL' $1o s e their credibility
,4' themselves. -
5 -And. t h'e .in te r f ace- goe s . to. the .'s i m p l e 6 question of working-- with LILCO; doing things with.
7- -LILCO, following LILCO's plan. And very significantly it goes t o- the issue of authorizing LILCO to 'do 8
9 certain functions or giving LILCO the ' power to ' do -
10 certain. f unctions which .is in LILCO's plant. The.
-11 state and the county profoundly believe ' that as a 11'2 matter'of law they cannot delegate to LILCO any police 13 power functions. That is in the Constitu. tion of:New
-14 . York, which was not written, incidently, to stop the 15 Shoreham plant. It was around a long time before.
16 And it was stated by five judges in the court,. the ll '17 Supreme Court and the . Appellate division of Supreme 18 Court of New York and the county and state are on-l 19 unassailable grounds in making the. statement they:'will 20 not delegate to LILCO these powers and will not work l't 21 with LILCO.
22 COMMISSIONER ROGERS: Well, I can understand 23- that very well, but I don't understand the extent of 24 what you choose to use the word " interfacing" to cover 25 because --
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"1 MR. . BROWN: Well-- ,
tha t 's- ~ the. N R C .' s - w o r d .
2' 'That:'s not our-word. That's the word --
3 COMMISSIONER' ROGERS:- ---it'seems to me' you
~
4 can. cover-everything.
5 MR. BROWN: Judge Gleason.used that word 6 on --
7- COMMISSIONER ROGERS: Well,. but .you are 8- adopting - i t', aren't you?
9 MR. BROWN: -- telephone . conf erence calls
- 10- and Mr. Lanpher has something more.
11 MR. LANPHER: _If 'I c o u l d -' j u s t add,
'12 Commissioner Rogers, under the LILCO plan ' f or that 13 plan to be implemented as conceived by LILCO, there 14 was a requirement that LILCO personnel ' call people 15- like' the Suffolk County Executive, speak with the 16 'Suffolk County Executive and. get the Suf f olk . Coun ty..
17 Executive to authorize LILCO personnel to take certain.
18 actions such as direct traffic, such'as. sound sirens.
19 That goes under the euphemism of interfacing; that k '20 communication. But interface also includes gaining
~
21 the legal authority. LILCO's plan purports to have 22 LILCO gaining legal authority. We raised from the 23 very beginning before the Licensing Board that LILCO's 24 plan makes an unlawful ' assumption because Suffolk 25 County and New York state personnel may not delegate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENU(, N.W.
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f 1' to LILCO these authorities. did Judge Margulies ein the' _ f all of: 1987 in reported decisions, 4 2 I~ don't have-3' the citation right in-front of.me, said'that under the 4 Cuomo v . _LILCO decisions , - that 's the ~ New York state-5 Supreme Court' decision referred to by Mr. Brown,_ t h ei t 6 you .cannot ' delegate - those . authorities. However',- in 7 April of 1988 the impasse was created because Judge 8 Gleason and the Licensing' Board majority. said that no 9 longer can legal ~ authority' be raised. You can't 10- nullify. the decision for the New York state Supreme 11 Court Justices. And that'was what created the impets u 12 here on legal authority issues.
13 COMMISSIONER ROGERS: Thank you.
14 COMMISSIONER ZECH: One question on the
-- 15 subject of the realism doctrine. The Commission has 16 stated, as you know, that we believe that in times.of 17 an' emergency of any kind, the state and local 18 governments would, indeed, carry out their sworn 19
~
duties to protect their citizen.1. Do you have any 20 comment to make on that doctrine? Do you agree that 21 they would, indeed, carry out their duties to protect 22 their citizens?
23 MR. BROWN: No government would ever turn 24 its back on its citizens. The issue is whether the 25 governments would work with LILCO and follow the LILCO NEAL R. GROSS '
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'99' 1' - plan.
-2 COMMISSIONER ZECH: -I ' unders tand. But-3 you're not ref uting the f ac t tha t the governments 4' l .would,- indeed, carry out their duties to protect their 5 citizens?
6 -MR. BROWN: These governments stand'on their 7 responsibility. The reason they'are protecting'their 8 ' citizens is such a plain and important consideration 9~ to them, is the. reason we're here'today.
10 COMMISSIONER ZECH: Yes.
11 MR. BROWN: This is how they're protecting 12 their public.
13 ~ COMMISSIONER CARR: But the government'is;not-14 really ready.to testify as to what they-would do.
15 MR. BROWN: The government is prepared to 16 testify what they would do.
17 COMMISSIONER CARR: Well, .I understood they 18 said they would ad hoc it at the time'and that's all 19 they would do.
20 MR. BROWN: They said they would do the best 21 thing under the circumstances because they wouldn't 22 adopt a plan to mislead the public. Now, they didn't 23 do both' simultaneously. To the say the least, it 24 would be peculiar conversation if the government stood .;
25 up and said we're not going to have any kind of plan.
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~
s1 But .ifl the plant 's _ in '. operation, then we '.11 do can' ad 2 hoc . response but we' don't know.what it is and - won t l
3 Lspeculate.
4: This latter- conversation ~ aboutl not ;q
<< 5 speculating ' came in years af ter. as LILCO struggled 6 . year-by-fear to get around the regula tions. and 7 preclusions that kept them from ge tting a 'l'icense .
8- And ultimately the bottom -line. is when ,! pushed to 9 responding to the question-on, in ef f ect, . the witne:4s
.10 stand they said we don't know what we'd do. We-don't
~
11 have a-p1an.
12 COMMISSIONER ZECH: All right. Thank you-1' 3' very much.
f 14 -Any other questions? All right. Then,.'I'd' 15 like to thank you all very much. Does the -LILCO 16 person insist on a rebuttal? If you do, we'll take.it
> 17 under advisement. If not, we'll stand adjourned.
18 MR. IRWIN: Chairman, could I have about one
~19 minute on rebuttal?
p 20 COMMISSIONER ZECH: Well, we would like to-21 then take it under advisement. What we'll do is take 22 a.very short recess and talk with the Commissioners 23 and we'll be back very shortly.
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1101v 1- ,.that; the procedure ..is that the -- firs t- party . has. . a 2 chance tos rebut ,- I'm .. reluctan t' to ; say b'ut I'have to,
'3 that 'i f LILCO says ' something , we should. be = given ' the -
4 right again-to reply.
5- COMMISSIONER ZECH: :We'll consider that 6 also.
7 MR. BROWN: There. could~ = be' somewhat of 'a',
S- spiral. I'm sorry.
9 COMMISSIONER ".E C H . We'11 consider ' 4 bat ,
- 10. too.
11 We stand in recess for just a few minutes.
12 (Whereupon, a recess.)
13' COMMISSIONER ZECH: .The Commission ' has 14 decided'not to have-.any further' rebuttal argument.
15 (Whereupon, at 4:22 p.m., the Commission was 16 adjourned.)
17 18-19 20 21 22 23 24
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. o p; ..
l- CERTIFICATE OF TRANSCRIBER This is to certify that the attached events of.a meeting-i of the United States Nuclear Regulatory Commission entitled:
TITLE OF MEETING: ORAL ARGUMENT ON' SANCTION ISSUE IN SHOREHAM PROCEEDING
. PLACE OF MEETING: ROCKVILLE, MARYLAND DATE OF MEETING: FEBRUARY 21, 1989 were transcribed by me. I further certify that said transcription is accurate and complete, to the best of my ability, and that the-transcript is .a true and accurate record of the foregoing events.
Qua, H adk i t i
Reporter's name: PETER LYNCH i .
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~ ~ ~
L
. 12/21/89 ~l-
' SCHEDULING' NOTES
- TITLE: ORAL ARGUMENT ON SANCTIONLISSUE IN'SHOREHAM-PROCEEDINGS SCHEDULED: 2 :'00 : P.M., TUESDAY, FEBRut."V 21, 1989-(0 PEN)
[DURAT. ION: . APPROX 2' HRS-
- PARTICIPANTS
- -lNTERVENORS 40 MINS SUFFOLK COUNTY / TOWN OF SOUTHAMPTON
--HERBERT.H. BROWN - SPEAKER (25 MINS)
LAWRENCE LANPHER STATE OF NEW YORK
- RICHARD J. ZAHNLEUTER - SPEAKER (5 MINS)
DEPUTY SPECIAL-COUNSEL TO THE GOVERNOR APPLICANT /NRC 40 MINS r
LONG ISLAND LIGHTING COMPANY
- DONALD P. IRWIN - SPEAKER (30 MINS)
TAYLOR REVELEY IRA FREILICHER .
JOHN LECNARD
,NRC
- EDWIN J. REIS - SPEAKER (10 MINS)
JOSEPH SCINTO MITzl YOUNG 1 REBUTTAL BY INTERVENERS (10 MINS)
M NNNN$NNGGkkkkkkkkGkkkkkkkkkkkNNgg g ggy ;
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il
! ADVANCED COPY TO: The Public Document Room
- 'DATE: 8/f M f
- t FROM: SECY Correspondence &' Records Branch jj j i
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- l - Attached are copies of a Commission meeting transcript and related meeting l
I -!. document (s). They are being forwarded for entry on the Daily Accession List and (
L- 1 . placement in the Public Document Room. No other distribution is requested or E E:
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required.
Meeting
Title:
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Meeting Date: #[J//P#1 Open / Closed i!
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C&R Branch files the original transcript, with attachments, without SECY ffl l papers, W S $ $ $Y uns
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